Which liens are not wiped out at the Trustee Sale ?

If the 1st mortage lender is doing the foreclosure, exactly which liens are not wiped out? Is the winning bidder now responsible for paying them ? How soon do they have to be paid ? Is it possible that a lien gets recorded in between the time of a preliminary title report and the auction ? Would title insurance protect  against such a case ? Sorry for asking many questions if you don't mind :-)

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Let me start by saying that there are some nuances that chief title officers still debate, but let me try to give you a framework to work from. The basic concept underlying all of this is that when a lender makes a loan, secured by the property, they shouldn't become responsible for loans that occur later on. That simple rule frees the homeowner up to take additional loans without having to ask the earlier (or "senior") lenders for approval. In exchange later (or "junior") lenders understand that if the senior loan forecloses the senior lender is not responsible for insuring they are repaid. The next thing to understand is that this pecking order is simply based on the order in which things are filed at the county, by date and document number. It really doesn't matter what the documents say - I have seen deeds of trust (the document recorded for a loan in CA) labeled as 2nd mortgages that were actually in 3rd position. The only thing that can change this order, is a subordination agreement - which essentially sets forth that a loan recorded earlier agrees to be junior to a loan recorded later. Now a couple of additional things to note: property taxes are always senior. IRS liens that are junior are essentially wiped out but they have a right or redemption for 120 days (they can buy the home back from you for what you paid, without interest, or repayment of unnecessary repairs). Mechanics liens may have a claim if the repairs were necessary (the theory being that they were in the lenders best interest as they avoided further damage to the secured interest). Now with those things in mind let's get to your questions. Senior loans (either though date or subordination) are NOT wiped out, and occaisionally mechanics liens (I've never had it happen personally) and the IRS has a right of redemption.  The winning bidder isn't directly responsible for paying senior liens, but if they don't they will lose the home when those senior liens foreclose. Yes a lien may get recorded between the time you do your research and the sale - but it will almost always be junior so it doesn't really matter (I did see a lender record a subordination the day before the sale to try and sucker folks in at the auction - but it was clearly fraudulent and the sale was overturned). I'm not aware of any title insurance products for buyers at auction at this time. Hope that helps.

Answered by Sean


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Hello Sean...  I just read your very informative response to the question, Which liens are not wiped out at the Trustee Sale ?.  I am looking at a Trustee's sale Oct 1 on a property owned by people that went bust in a failing restaurant business.  I have checked the recorder's office and found 3 mortgages - the first being the one foreclosed on (senior) and two others.  I am now concerned that maybe there are property liens out there somewhere resulting from restaurant debt lawsuits or equipment agreements, etc.  Would they be wiped out at the sale if not recorded?  Thanks for your insights.... Larry    Larry
Hi Larry - unrecorded liens are something I haven't had to face yet. My understanding is that as a bonafide purchaser for value, that had no knowledge of the liens before purchasing, you should be protected from claims as you relied on the recorded data, and it was the lienholders responsibility to protect their position by recording their lien. That said, one thing I do know is that anyone can sue you for anything, and in doing so they can tie up the property for a long time by filing a lis pendens. So if you expect trouble on a deal make sure to leave enough room in it to be worth the time and trouble  - I've found that if you plan for the worse, everything usually goes perfect, and if you expect everything to go perfect, you get nothing but trouble. ;-) Sean
excellent. always confused before but you really cleared it up. wasnt aware of the 120 irs rule but i do now. Anonymous
Sean, I just had a senior title officer tell me the following:  Concurrently recording trust deeds (ie.90/10, 80/20, 70/30 loans) are equal in seniority unless otherwise specifically stated on the face of the recorded TD. Therefore, even if the foreclosing TD appears to have priority based on the sequential recording number (xxxx-xxx111 is foreclosing and xxxx-xxx112 was recorded with same date/time stamp) xxxx-xxx112 will not be wiped out by the foreclosure sale initiated by the default of xxxx-xxx111. Xxxx-xxx111 will be extinguished, but the new buyer will be responsible for xxxx-xxx112 and title policy will list xxxx-xxx112 as an exclusion.  I had a local, highly respected, so. Cal guru confirm the title officer’s opinion. What say you?     Anonymous
I say you are getting smoke blown way up somewhere. Absolutely ridiculous on its face and is contrary to everything I've ever learned about title and to dozens of transactions I've done where sequential juniors have been wiped out.   Worse, it is completely non-sensical. Why would there even be such a thing as an 80/20 if the 80 was assuming the 20 upon foreclosure anyway? I think you've either misunderstood what they said, they are messing with you, or they are brain dead.   Do note I'm not a title officer or an attorney, so proceed with my opinion at your own risk. :-) Sean
How can you find out if there is a lis pending on a particular property? Luis Renteria
It will be recorded at the county recorder, just like IRS liens, judgments, loans and most other things that affect title to real property. Sean
Hi, Does your response above apply to Arizona as well or just California? Amy
This is in response to the last portion regarding "title insurance products for buyers at auction" and just wanted to let you know that I do have a product we offer at my title company here in Northern California which is intended for Investors looking to purchase property at foreclosure. This is a "Condition of Title Guarantee" which discloses the vesting, taxes, deeds of trust, and liens/judgments as shown in the general index. My investors have found this product very helpful in deciding whether or not to purchase a property at auction and to avoid purchasing a 2nd at foreclosure or a property with Senior IRS liens, etc. Phillip
Hi Phillip, How can we reach you? Michelle
Hi Phillip how do we find you for the title guaretee you talked about? don
Want title insurance on property I purchased at trustees sale on 8/18/2010. Property address is 710 banff drive, newsman, ca 95360. Can u help me. Belinda carey
HI Belinda, You can contact any title insurance company to buy a title insurance policy after the trustee sale. There is just not a policy available at trustee sale so the title company will have to do the title search and issue a preliminary title report after the fact. Michelle
As president of our Home Owners' Association, I have just received a Notice of Trustee's Sale for a property in our development. We have several liens on this property for unpaid dues in the amount of approx. $14,000.00. Does the sale of this property in a Trustee's Sale wipe out our liens or is the new owner responsible for them? Bobbie Meyer
It would only wipe out junior liens... those recorded after the HOA lien. As such you should expect that anyone buying the HOA lien in question would have to pay off the first and second mortgage as well as any past due property taxes. This makes it very unlikely anyone will purchase the lien, and its quite possible the HOA is throwing good money after bad by paying the attorney to foreclose at all. Most second mortgages don't bother foreclosing at this point for exactly that reason. Sean
We are not initiating the foreclosing. It is being foreclosed by a bank. This is brand new info for us and I don't really understand this process. We are in Washington State if that makes any difference. It looks like they are delinquent for approx $53,000.00 not incuding our $14,000 liens on a home worth approx $750,000. Our HOA is just a bystander in this process. Are our liens protected in this situation? Will the new owners be responsible or will the liens just disappear? Do we need a lawyer to protect our liens? Bobbie Meyer
Your HOA's liens will likely be wiped out by the foreclosure, and there is likely little you can do to protect your liens. Couple of things to check: 1. A few states allow HOA liens to be super senior, which means they would not wiped out. I'm pretty sure WA is not one of them, but you check with an attorney. 2. If there is adequate equity in the property to satisfy the foreclosing loan, your liens and other senior debt then it may be worth foreclosing on your liens and selling the property. This could be a lengthy and expensive process so be sure there is sufficient equity. Finally, be sure to check with your associations attorney, while I'm pretty sure the above comments are correct I'm not an expert in WA HOA liens. Sean
Thank you for your help. Bobbie Meyer
Is an "abstract of judgement" made after the senior loan date was made, also wiped out by the property auction? andrew
If by made, you mean recorded, yes, that should be the case. But always look at the underlying issue if you can. Just because it is technically wiped out, does not mean the holder won't sue you and challenge that. Sometimes that is the real benefit of title insurance, protecting you from false claims. Sean
Thanks for the followup. I did more research and it gets more interesting...the owner took out a Real Estate Note prior to the 1st mortgage with a private party for $500k, which was notarize, and to be paid in full two years later, with interest of 6% per year. During the two year period, the owner refinanced her 1st mortgage, which is now in default. However the default on the Real Estate Not was only filed with the court after the 1st mortgage was taken out. So would I be liable for the Real Estate Note? andrew
Time to take the Chief Title Officer at your local title company to lunch... or consult an attorney. Sean
Hi Phillip! How do we contact you to buy this "Condition of Title Guarantee"? David
Hi Phillip! How do we contact you to buy this "Condition of Title Guarantee"? David
I would say that this is not true in many states where HOA liens are considered as "super liens" to certain limit. In Colorado, HOA can collect up to 6 months of HOA fees plus legal fees from the winner of the foreclosure sale regardless of the lien position, or even if the HOA lien is not recorded. Jason Chen
Already mentioned super liens in the post just above, but thanks for the specifics on Colorado. Sean
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Sean,   Thank you for your response to my question.   Have Great Day! Billy

Answered by billycollett


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I am considering buying a partially completed home at a trustee sale.  The title report states several significant liens by subcontractors that I am assuming are junior to the construction loan.  Would I be responsible for paying these liens back if I were to purchase the property?

Answered by elizabeth


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Wow Elizabeth, that is a very interesting case. I would assume it would wipe them out, but my understanding is that mechanics liens have been allowed to stand in certain circumstances if the work was considered to have benefited the lender. I would likely discuss this with a title company. Specifically ask if they would be willing to issue an owners policy after the sale, and if not why. Sean
Elizabeth - Never assume a recorded Mechanics' Lien is junior to a Deed of Trust merely because the involuntary lien (Mechanics' Lien) recorded subsequent to the voluntary lien (Deed of Trust). Mechanics' lien law is very complicated. If, for example, there was a "pre-start," i.e., work commenced prior to the recordation of the Deed of Trust, then it's likely that all subsequently recorded mechanics' liens have priority over the defaulted Lender's lien. That goes above and beyond the liens you're seemingly already aware of. Even if one was inclinded to cure the existing mechanics' liens, other liens could still pop up (read: record) at a later date and attach to the property. An action to foreclose any of those liens (Lis Pendens) could be filed and, if successful, could wipe out any financing you may have placed on the property (upon acquisition). Be cognizant that foreclosures are risky enough business. This, without the ultra-hazardous risk of ongoing construction, which is fraught with even more peril... Title Guy
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I have a lien on someone's property because they owe me money.  How do I know if I am a "junior" or "senior" lien?  and if I am junior and wiped out what is the point of my getting a lien in the first place if it doesn't hold true?

Answered by Judy


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Hi Judy, It is based on the concept of "first in time equals first in line". Each document recorded at the county has a date, and a document number. With just a few exceptions documents recorded earlier (lower date and document number) are senior, and one's recorded later are junior. Let's assume there is one mortgage senior to yours, with a outstanding balance of $400,000, and that your lien is for $25,000. If the loan senior to yours begins foreclosure you have some options. If your lien is in the form of a deed of trust you can likely begin foreclosure as well as typically any failure to pay senior debt is an automatic default. To protect your position you have the right to make the payments on the first until you can foreclose and take control of the property (at which time you may have to pay the first off as it likely has a "due-on-sale" clause). Alternatively you can let the first foreclose, attend the auction, and bid the first up at trustee sale until the winning bid is enough to cover your lien (the trustee on the first will pay out any excess proceeds to lien holders in order until funds are exhausted or all liens are paid at which point the remainder goes to the homeowner). If the senior loan sells at foreclosure sale, for less than enough to cover your lien, and you FAIL TO PROTECT YOURSELF, then you are wiped out. Getting to have this option is the reason to file the lien. Sean
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What about HOA fees due?  I assume they would be junior and would be wiped out.  Am I correct to assume (generally speaking) that you would owe all back due property taxes, but be free of HOA dues if you buy at auction?

Answered by scottlut


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Yes, that is correct, but you may find it hard to get the escrow closed without paying back HOA fees. Problem is that despite the fact their lien is wiped out, the associations often fight you. While I think they would ultimately lose, it's sometimes more expedient to pay. In any case, you'll need to work it out with your title co, and don't leave it until the last minute. Sean
I might be on thin ice here, but I believe I recently read something that said that a unit owner's debt to the HOA is NOT wiped out by foreclosure like traditional junior liens are.  Or maybe this is a "nuance" but what I read was that the HOA debt "follows" the orignial homeowner, and the HOA is free to pursue that homeowner in court.  If I understand it correctly, the new buyer IS NOT responsible, but neither has the foreclosure wiped the original owner's obligation to the HOA. Wendy
Keep in mind that when I say "wiped out", I am only referring to the junior debts secured interest in the property. With the exception of purchase money loans I see no reason why a junior lien holder can't continue to pursue the homeowner - it's a nuance I worry about in the homeowner forum, but not the auction buyer forum as auction buyers aren't really impacted.   Also, for those outside of CA, it is my understanding that HOA liens in some states can be "super senior" like property taxes. As I recall it requires the CC&R's which are generally always recorded before (or senior) to any individual home loans, to specifically put future lenders on notice that HOA debts are senior.   See for example: http://www.usfn.org/AM/Template.cfm?Section=Home&SECTION=Article_Library&CONTENTID=9537&TEMPLATE=/CM/HTMLDisplay.cfm Sean
Following a foreclosure, subsequent purchasers and lienholders cannot be subject to personal liability for any delinquent assessments or installments that came due before they acquired title to the property. (Civil Code § 1466.) A trustee’s sale or judicial foreclosure of the first deed of trust (or other senior lien) will extinguish all assessment liens that were due before the ownership interest was acquired. A person who acquires an interest through judicial foreclosure or trustee’s sale will, however, be liable for all assessments that become due after the date he or she acquired the property interest. (Civil Code § 1367(a) and Civil Code § 1367.1(a).) Lena
Does this include IRS liens recorded after the notice of trutees sale. We purchased an auction home with Personal IRS liens attached, dating back to 2005, homeowner then filed Chapter 7, causing trustee to contact IRS for release to sell property, but IRS is now holding us responsible for the payment of the previous owners personal taxes. Is this common procedure??? I hope not or we will see lots of people letting their homes go so someone else can pay their back taxes. They sould be in jail for tax evasion..Any comments? Mary
It depends on whether or not the IRS lien was recorded before or after the date the deed of trust that was foreclosed upon went to sale. If the IRS lien was recorded first then yes, it is a senior debt, and like ALL senior debt it must be paid by the buyer at trustee sale. If it was recorded after the sale it was wiped out... subject, however, to the IRS's 120 day right of redemption. I'd recommend seeking the help of a title officer or attorney familiar with title issues to review the specifics of your case. Sean
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I have a property that I'm interested in that is going up for trustee sale for HOA.  If I win the bid, will I be respondsible for any other loans on the property such as banks, 2nds and taxes?

Answered by cjwessel


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Right. And also note that the homeowner has a 90 day right of redemption after the trustee sale. See civil code 1367.4 (c) 4. Sean
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If you buy at the actual foreclosure auction, you are liable for the unpaid property tax. Your bid did not cover this amount. If you wait and buy it from the bank, the bank can not close the sale to you without paying the taxes..

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Actually the bank CAN resell a property without paying the back property taxes, though you are correct that it is not typical. Sean
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Have you ever had liens recorded after the Trustee's sale, but before you recieved the deed in the mail and have it recorded?    I recently checked out a property where someone was living there and doing work on the property - supposedly in exchange for rent.  But if they kept all their records and did improve the property, it seems they could record a mechanics lien and you would be forced to either pay or sue?

Answered by scottlut


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I have not had a lien filed in that manner though I have had equally frivolous lis pendens filed. I disagree that I would be "forced" to pay or sue. That would only be true if I needed to resell the property and the title company wasn't willing to insure the transaction without a reconveyance (one could argue that is was wiped out by the foreclosure as despite the filing date it was for work incurred prior to the foreclosure). Also note that my experience is that the courts are not friendly to homeowners that play games and try to misuse the legal system to gain rights above and beyond those provided during the foreclosure process. That said it is importatnt to remember that anyone can sue your for anything and you should be prepared for this as a part of buying at the trustee sales. Sean
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I am looking at a house that has IRS liens filed after the 1st being foreclosed. However, the liens list delinquent tax years that pre-date the 1st. I think I know the IRS lien is junior unless recorded before the loan being foreclosed? The tax years are just information? How did this guy get loans with delinquent taxes?

Answered by richard_1


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As to your last question how would the lender know if the liens weren't yet recorded? Especially back in the days of stated, and low or no doc loans. Without being able to generally rely on recordings sale and lending would be nearly impossible. And yes, it is the recording date of the lien that matters, not the tax years. Sean
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What happens if you purchase a home at the Trustee Sale, there happened to be IRS liens, and you sold the home within 90 days after becoming the owner, flipping it. What is the IRS came knocking on your door to purchase the property back from you within that 120 day period, but you have already sold it for profit?

Answered by RobertM


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Unlikely you'd be able to sell as most buyers would want title insurance and or need a loan that required title insurance. If it were to actually happen, I'd imagine the IRS could unwind both sales paying your buyer the amount you paid at auction, and then that buyer would have a claim against you. I haven't looked into it, so note this is just a guess. Sean
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GREAT information, I'm glad I stumbled across this page.   I want to buy a property at a trustee auction in a couple of days but I just found out that the foreclosing lender is in 3rd postiion.  There is a first mortgage, followed by a line of credit, followed by a 3rd loan by private party (foreclosing).  If I buy the property, will I be responsible for paying the other two loans since they were filed first?  Thanks.

Answered by Janell


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Yes, and the back property taxes too!!! Sean
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I opened escrow on a property I bought at auction last week to get a preliminary title report. I know there are junior IRS liens and Franchise Tax Board Liens. I wanted to see what the title company would say about when they would be willing to issue title insurance to a buyer. To my surprise, none of the liens showed up in the preliminary report. If you relied on the prelim to buy at auction, it would have missed very significant title issues.  I am thinking about send them an email asking them about these other liens. Should I do this or just let it go until I get a buyer into escrow?

Answered by Mauleace


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The FTB liens shouldn't show, they were wiped out by the auction if they were junior. Did you review the exceptions to make sure there wasn't a note about the IRS lien? Perhaps it just isn't where you expect it to be. Your call as to whether to ask or not. If you do it will delay your ability to resell for 120 days, on the other hand if you don't they may find it anyway. Sean
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If I am holding a first trust deed note and have begun the foreclosure process in California, do I need to attend the auction to bid the price up so that I don't lose the money owed to me, i.e. if the highest bidder bids only $150,000 and the note I hold is $350,000, do I need to attend to make sure I get the property back if the highest bid is way below the value of the property?

Answered by MikeP


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Do you have a trustee handling the sale for you? If so they will ask you for bid instructions before taking it to sale. Since you are the holder of the note and deed of trust, it is up to you where to start the bidding at.   The only reason you would need to appear in person to bid, was if you really wanted the property and were willing to pay more than what you are owed. The reason for this is that the maximum bid you can place as the note holder is the total amount due on the note. If you want to bid more you have to show up with cash like everyone else.   Hopefully you are using a reputable, experienced, trustee - they should be able to walk you through all of this and help you make sure no mistakes are made. Sean
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First time visitor to site - killer information, WOW!   1) What is the reason to buy title ins. after the sale, will the title co actually insure my transaction if I  miss something? 2) Do you hire an abstractor to research every counties recorders office or will the title co.'s do the prelim for free if I pay for #1 above? 3) Is there an investor friendly title co that most investors use in Cal?   Appreciate your advice. 

Answered by Jet


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1) They certainly won't insure what you missed if they find it. They are also unlikey to give you an owners policy - though they may with some exceptions. 2) I ran my own in-house title plant, others use abstractors, some get info from customer service at a title co in exchange for escrows (hard deal to get), and I have heard of one title co doing pre's+insurance for hard money loans on auction purchases but that isn't common. Try taking the chief title officer at your local title plant to lunch and getting their opinion on local options. 3) In my experience it really depends on the local office more than the company. Sean
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I am looking to purchase a property through trustee sale.  The foreclosing lender is NOT the senior lendor, there is another loan on the property (LIne of Credit) from another bank two years prior.  Am I responsible for the Line of Credit as well?  Also, if I buy the property directly from the homeowner, am I responsible for both loans?

Answered by Lisa Chew


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Hi Lisa. Yes, you would have to pay the senior loan if you bought the junior (later) loan at trustee sale. And yes, you would have to pay both loans if you bought directly from the homeowner. Sean
How are the loan terms handled?  Does it follow the original terms and interest rates?  Lisa Chew
I'm assuming you are asking about the terms on the senior loan if you buy the junior. It is important to know that the senior loan will almost certainly have a due on sale clause, and since a foreclosure is a sale, the senior loan becomes due in full upon your purchase of the junior loan.   That said, I have been successful in making payments on senior loans. Best bet is to work with the prior owner to get their payment information or coupon book, and then just try sending the payments. Has worked well for me in all but one case - in that case the senior loan demanded to be paid off, or else they would foreclose, wiping out my ownership.   Bottom line, you may be able to make payments under the current owners loan terms, but you better be prepared to pay it off. Sean
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Quick question about wiping out junior liens. We recently opened escrow on a REO and the prelim title search found four junior liens. We were informed by the seller's agent that escrow would have to be delayed approx three months to wipe out these liens. Is this a typical timeframe? What exactly is the procedure that the bank must follow to eliminate the junior liens. Thanks.

Answered by me_eckard


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Are any of the junior liens IRS liens?  If so that makes perfect sense as the IRS has 120 day right of redemption and you won't be able to get title insurance (or a loan as they require title insurance) until that time period has passed. If non are IRS liens then I would go talk to the title company and ask what the issue is, as I see no reason why they shouldn't otherwise be able to issue a title policy. Sean
Wow Sean! Thank you so much! You are a veritable fountain of knowledge! I am reviewing for my Arizona Real Estate Sales License and stumbling upon this site has been very beneficial to me! I definitely plan to visit this site on a regular basis. Thanks again. Laurie
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I have been to the county office, found out that the first loan was for 12,000.  the second for 86,000 and the second is forclosing , minimum bid is 90,000 . there seems to be no other leans on the property, property is worth abput 150,000) is this a dangerous situation?   2) is there anythig else I need to find out, like jujments and and IRS problems?

Answered by Ilya


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What if HOA is foreclosing on the property? Who gets paid?

Answered by Jennifer


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if you're not verifyed - that means  - you did not buy the membership from this site. that means your questions are not answered or not fully answered ? am I right? am I close to being right?  I think this makes sense!

Answered by Anonymous


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You don't have to subscribe to ForeclosureRadar.com to use this site. Not verified simply means the comment was left without our verifying the email address.   Note that I prefer people ask new questions by posting new topics, rather than leaving them as comments. So I do sometime ignore (or just don't find) new questions in comments - especially when they are months after the origina question was asked. Sean
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I purchase a house at auction that has a UCC Financing Statement filed for the borrower and the property.  Is this a lien? It is dated after the 1st TD that was sold at auction. I have read that a UCC lien for fixtures attached to the house are not wiped out by the foreclosure. Will it be necessary to get this released? I have also read that one of the remedies is for the lender to have the subject equipment removed. I have not seen the equipment, but the filing says it is a water treatment system. As far as I am concerned, they can come and get it anytime. I would appreciate any insights on how to deal with this issue.  

Answered by Mauleace


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I'm not sure, but I vaguely remember letting a water softener co come in and remove their treatment system rather than deal with the UCC, so its possible they remain intact after foreclsoure - but I'm not sure. Please post the answer back here if you find it. Sean
The item in question is a water treatment system. I contacted the lender and invited them to remove it. But they are not interested. Clearly not liable for the debt, but I am wondering if it will be an title insurance issue when the house is sold or refinanced.   I have asked the title company to do a prelim, but I think I need a new title company as they are not responsive. I found the following in a title insurance guide online.    In General The Uniform Commercial Code (UCC) is a body of law which attempts to codify and make uniform throughout the country all law relating to commercial transactions, such as conditional sales, contracts, pledges, and chattel mortgages. The UCC covers personal property transactions, including stocks and commercial paper. The main relevance of the UCC to real property is in the area of fixtures, as covered in Article 9 of the Code. Where a chattel is purchased on credit or is pledged as security, a security interest is created in the chattel by the execution of a security agreement. Rather than recording the agreement, the creditor would file a financing statement in the recorder's office. If the financing statement has been properly filed, the creditor, upon default, could repossess the chattel and remove it from the property. Each state must legislatively adopt the U.C.C. and typically state legislatures make minor modifications in the U.C.C. before adopting.   Fixtures A "fixture" is an article that was once personal property, but that has been installed in or attached to land or a building in some more or less permanent manner, so that such article is regarded in law as part of the real estate. Nowhere in the Uniform Commercial Code is the term "fixture" explicitly defined. However, the code does provide that "goods are fixtures when they become so related to the particular real estate that in interest in them arises under real estate law." This provision basically leaves the question of whether an item is a fixture or not to the law of each state. In determining whether or not an article is a fixture, the courts apply the following tests: The manner in which the article is attached to the real estate. The character of the article and its adaption to the real estate. The intention of the parties. The title professional should be aware that some parties to transactions and draftsmen use the term to refer to items that would not be considered part of the real estate. For example, shelving units for a grocery store.    Priority Of U.C.C. Generally a properly perfected security in fixtures will have priority over an earlier mortgage. Do not waive a financing statement because of a nonjudicial foreclosure of a prior mortgage. If there has been a judicial foreclosure, do not waive a financing statement unless notice was given to the creditor. Mauleace
Good find. Seems to answer it, but I wish it cited the code. Sean
Finally got a prelim today. And to my delight, the prelim did mention the UCC filing at all. So, they must get wiped out at foreclosure or they have no standing beyond protecting the equipment secured by the UCC filing. Will see how it proceeds through escrow. Richard
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I loaned a guy a year ago and he did not pay. Mine was the 2nd loan. But there was another hard loan first before me, now it os foreclosing. The property has clearly enough equity for me. Foreclosing date is around a month later from now.    What should I dto protect myself at this moment? Any paperwork where? Thanks   Joseph Park/e-PRO Realtor/CRA/Reo Bk-1847690 Korean-American Real Estate & Investment Tel:619-370-7199  Fax:866-542-0545

Answered by jpark7777


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You are a gold mine of information! Thank you! I have a question about setting up a self directed equity trust IRA, that will allow me to purchase real estate and pay cash via my IRA, and reinvest the proceeds. I can stay in the 350K and below market and my thought is I can generate profit with short turns known as flips, and purchase more property. Do you know of a reputable company that understands how to setup this type of IRA for real estate? Large banks and brokers wont touch it because they make money from investing my money, not from allowing me to invest my money.

Answered by RayD


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TRULY SELF DIRECTED (TSD) can help you accomplish you self-directed IRA objectives. If you send me your EMAIL address I will send you their information. It is a great system for real estate transactions. Sunrise Appreciation LLC Sally Ross
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Hi, So there a a few houses I have my eye on that are going to Trustee sale. I have a 2 part question, 1. if its the 1st loan that's filed the NOD and NTS and I am the winning bidder and there are no back taxes Do i still have to pay the rest of the loan or just the default about? 2. I have done some homework and found that the NOD was filed on the 1st loan but then the NTS is under a different trustee and stating a loan from the trustee and doesn't state its for the 1st loan. How can I find out whats going on?

Answered by Matt


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1. If you are the winning bidder, then you will owe nothing additional to have that loan removed from title. 2. Be sure to read the documents carefully and pay attention to which loan each is recorded against. Trustees make mistakes all the time. Sean
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great forum !

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I bought a home at trustee sale and found out afterwards there was a lis pendens on the property against the lenders and the trustee company with the homeowners being the plantiff. I am surprised that the trustee company was allowed to cry the sale as they were named in the lawsuit. Should they give me a refund? How should I handle? Work something out with the prior owners? Still want the property but don't want to be dragged into a lawsuit and I am not sure if I have grounds to force the trustee company to refund me for the property.

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If you have a new question please start a new topic. Thanks, Sean

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if a HOA lien gets sold at the steps and shows THE BANK as the owner (trustee/trustor) and you win the bid but then find out that the law group the did the sale for HOA named the bank and the bank didnt own it would this unwind the trustee sale?

Answered by jason bouquet


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I'd guess no, but you should discuss specifics with an attorney to be sure. Sean
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what are the chances of the IRS coming forword on collecting in the 120 days? Does the 120 days start from the day you buy the lien at trust sale?

Answered by jason bouquet


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From my experience the chances are pretty small. Sean
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I have a property going up for Trustee Sale which has about $500-800k in equity in it. I am ok with letting it go but I am concerned about other debts I have in relation to the property being unpaid. Can I suggest these loans / promissory notes go ahead and be attached to the properrty so that the Trustee would be forced to pay them (should the sales amount go OVER the loan amount). In reading your posts, should the amount go OVER the amount - would those funds go back to me?? If so, I am not that concerned with attaching them to the property. In that case, I would just take those funds and repay the debts. Thank you very much. These were additional small loans that WERE secured by the property, however never filed with the Clerk and never given permission by primary lienholder for subordinate lien.

Answered by John Smith


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They don't need to be "secured" by the property, but they would have to have a claim against it... for example a judgement or lien filed against you in the same county would have a claim to the property. If there is nothing outstanding then yes, excess would come to you. That said, I wouldn't necessarily expect to see any excess. Properties don't sell on the steps for market value. If you really want to get the max for the property (and therefore debt repayment) you should try to sell the property using a Realtor, or prior to foreclosure in any case. Sean
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I have a lien on a house that is going to a trustee's sale. This was a builder builing his own house and my lien is for work done while the house was being built. Will my lien stand or does it get wiped out?

Answered by Erin


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Is the lien on the house or the owner? And was your lien filed before or after the loan that is foreclosing? Assuming it is against the owner and was filed after the foreclosing loan, the foreclosure sale may wipe out your claim against the property... but I believe your claim against the owner and any other property they have would stand. I'd recommend checking with an attorney though, especially if there is a chance the property will sell for more than the foreclosing loan balance. Sean
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The lien is on the house and owner, the lien was before the house foreclosed. The lien is for work done on the home while it was being built.

Answered by Erin


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Does a foreclosure by a lender wipe out all Lis Pendens on a property, or are there certain type of lis pendens that are not wiped out and remain a cloud on the property?

Answered by rgarcia


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Lis pendens are just notices of pending litigation, and no, foreclosure does not stop the litigation. The foreclosure action may wipe out the underlying claim against the property, but you will likely not be able to resell the property with clean title until that litigation is either resolved, or you can otherwise clear title with the parties involved and/or the court. Sean
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I have a situation where my client has purchased a property on the court house steps at a trustee sale. The previous owner has child support judgments recorded against the property and it was my understanding that this judgment is junior and should be wiped out. However the attorney for the county family court division is pursuing collection on this? Any thoughts? Thanks

Answered by Jeff Fontana


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Keep in mind foreclosure only wipes out their secured interest in the property, the county can certainly continue to pursue the prior owner, as well as any excess proceeds fromt he trustee sale. If they really are pursuing the purchaser, and the judgement was really junior, you may need to hire an attorney to address what seems to me to be an unsupported collection effort. Sean
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I have 2 questions while doing property record search. 1. Sometimes I saw child or family support judgments as well as county medical service liens recorded under the same name of my targeted trustor. A medical service lien has the debtor's signature which can be compared with the trustor's signature in a deed of trust. But a child/family support judgment has only social security number, driver license, or date of birth. How do I know it belongs to the trustor or somebody else with the same name? 2. Is notory bond a lien? Thanks!

Answered by Vincent


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This can be a challenge. Try to correlate whatever you can. Otherwise you just have to make a judgement call. In normal transactions each party to the transaction completes a statement of information which gives the title co the information necessary to sort through these issues. Sean
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I was looking at the title data for a house that I am interested in buying that has a first deed of trust dated and recorded on 5/17/07, a second dated and recorded on 7/3/07 and a deed of trust dated and notarized on 3/15/03 but not recorded until 8/19/09. Am I correct in my belief that the 3/15/03 deed of trust will be wiped out by the foreclosure sale of the first trust deed due to its late recording on 8/19/09? Thank you for your assistance.

Answered by Dave Swanson


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Fascinating. Liens don't have to be recorded to be valid. On an issue like this I'd call my title officer and ask. Whether or not your title co will insure a subsequent sale is often the most important question. Sean
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Lets say a home is purchased at auction by an investor. The foreclosed homeowner is a LLC with 4 members. One of the members has 25% ownership and declares bankruptcy the day of the auction sale. The BK is recorded before the auction sale. Could this be grounds for the sale to be rescinded? I am most concerned of putting money into the home and having it taken back at what I bought it for.....and lose what I put in. Thanks....

Answered by Mark A.


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I'm not an attorney, but I seriously doubt it. I believe the LLC itself would have to declare BK to stop the sale. Sean
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Question for the experts - Looking at a home that has a revolving line of credit of 200K dated 2/02 and a mortgage of 800K dated 2/07. The 800K mortgage will be sold at auction. Now how do I know how much was taken out of the line of credit (I assume it's the 1st lein due to date)? Would the line of credit freeze the account after they found out about the NTS or would they leave it alone since the owner is making the monthly payments?

Answered by Ben


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Pretty unusual for a lender to loan $800k in a position junior to a $200k HELOC. I'd look again for a reconveyance. If I new an escrow or title officer at the title co that handled the $800k loan I might also see if they couldn't lookup whether or not the HELOC was paid off when the $800k loan was made. From there I'd probably knock on the door and see if I couldn't convince the owner themselves to tell me. Sean
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That's what we were thinking. We pulled a preliminary title report and it showed the HELOC. Not sure if it's worthwhile to pull a full title report to get additional info. I'll probably make a trip to the county's record office to see what I can find out today. We're willing to do the 800K at auction, but the 200K lien is a deal-killer.

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It is critical to watch for unreconveyed HELOCS. Although the HELOC was undoubtedly paid off in escrow when the new loan was recorded and the title company requested that the account be closed with a recon to follow we have seen several cases over the last few months where the account was not closed or reconveyed and the homeowner continued to use the account. This is not an issue for the foreclosing lender because they have a title policy that insures their lien position and would simply file a claim with the title company if the property becomes bank owned. This lenders policy does not cover an investor. We recently heard from an investor that purchased a property at trustee sale that was a purchase money first trust deed only to find out that the HELOC from the previous owner was not reconveyed and the previous owner continued to use the account. The account is now in collections and the collection company sees a potential payday so they are not being very helpful. We suggested contacting the title company that handled the sale but unfortunately they are no longer in business. We cannot stress enough the importance of checking for recon's on HELOC's.

Answered by Michelle


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I purchased property from 1st bank in trustee sale. I use it as my primary residence. I paid $473K in auction The first lien amount is $426K, the 2nd lien is $240K. 15 days later, I received trustee deed from 1st bank. I guess 2nd bank also receive $47K from trustee sale. But 2nd bank never send me release of lien. Do I need to contact 2nd bank to ask them release the junior lien ? The 2nd bank is Washington Mutual, recorded in Cal. Orange County 2005001040896

Answered by Mark L.


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Reconveyance of junior liens is not required, recording the trustees deed is sufficient. Sean
I did record trustee deed back in Nov 2009 within 15 days period. If the 2nd loan refuse to recording "release of lien", Would the 2nd lien (junior) stay outstanding? I did not purchase title insurance since it is trustee sale. If I want to sell the house 10 years later, is this outstanding junior lien causing a problem in the future? Mark L.
The junior liens secured interest in the property was wiped out by the recording of the trustees deed. A reconveyance is not required. Note that reconveyance is the correct term for the release of a deed of trust. Sean
Sean, Thanks for educating me. As a novice, I am not familiar with legal terms. I will remember the meaning of "Reconveyance " from now on. Mark Mark L.
I just came across a foreclosure wherein the loan is an old unreconveyed HELOC ($60K) from 2000. The property changed owners twice since this old HELOC and the last purchaser in 2009 plunked down almost 50% in cash. The property has dropped in value (now worth appx $550K) and yet this old senior (first in line) HELOC from a prior owner is the loan that's foreclosing. I tried to contact the current homeowner to alert them to this foreclosure (although I suspect they know) as it seems they have ample equity in their home and would fight vigorously to keep it. Who stands to win or lose if this loan (HELOC) is auctioned at the steps. Could an investor profit by buying this loan given the strong likelihood of a mistake by a title company for failing to ensure that the old HELOC was reconveyed? Danny R
My guess is that it will play out like this: 1. If the homeowner is alerted they will (should) contact their title company, and the title company will payoff the loan and stop the sale. That is what title insurance is for. 2. If it does go to sale whomever purchases the property will end up dealing with the current owners title company and settling. I've purchased two deals that were similar, though not exactly, like this one. On both we ended up with a settlement with the title company. In one case a lawsuit was filed against us and the foreclosing lender as an apparent effort to try to scare the foreclosing lender into rescinding the sale so the title company wouldn't have to cut a check. Even on that one the ultimate settlement was very profitable. If you are going to pursue this as an investor just be sure to do thorough research. Title companies and lenders are very sophisticated, and their attorneys can be intimidating. Also don't both unless the potential for profit is substantial (market value minus your bid minus any senior debts that still need to be paid). For those thinking "but what about the poor homeowner", know that they'll be fine. This is the reason title insurance exists, and the title company will take care of them. Sean
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This is a great thread. My question for anyone who knows the Arizona Trustee Auction / Sale Law: Assuming no subordination agreements in place and understanding the priority of existing loans, if I am bidding on the senior loan (first in time) at Trustee Auction, will the second HELOC (showing up on the title report as an Active second-in-time Mortgage) get wiped out?

Answered by Jack


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Arizona foreclosures are the same as California and junior liens are typically wiped out. It sounds like you have done your research which is very important. You need to research the chain of title to make sure you are confident you know which lien position is going to trustee sale.

Answered by Michelle


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I bought a house a year ago at trustee sale for 320K, and I recorderd the title at Conty record office. Now i fid out that other lender?? put my house on trustee sale next month (by looking in ypor website/I'm a member , no one notified me the sale) due to default on mortgage payment (on loan 600K). Please let me know what it is and why it happens. Thanks

Answered by Julie Ng


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Julie - you left out a key item... was the loan you bought at trustee sale senior or junior to the one now going to sale. If you bought a second then you need to payoff the first or risk losing the property. Sean
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When purchasing a CA condo in a trustee sale, who is responsible for the lis pendens for the HOA past dues, buyer or trustee?

Answered by Paul


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I assume you mean HOA "lien" not lis pendens. If so then it would be treated like any other lien. In some states, NOT CA, HOA liens can be super senior and are not wiped out by a senior loan going to sale. In CA it depends on whether the lien (not the CCRs) were recorded before or after the foreclosing loan. Sean
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We graded a house pad and the owner built a home on it. He ran out of money before completion of the project. We have recorded promissory notes with payment schedules that were not honored. I have had liens on the property and when it came time to get a draw on the construction loan I would remove lien. We did this several times. I have $25K in lawyer’s fees and a balance of $60K still owed to me. I have a lien and a deed of trust all recorded with the county the property is in. The property is valued at $1million and he owes $1.5 million on various loans (construction and property). What’s the chances of me getting paid in full?

Answered by Robert Hannan


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Totally depends on the position of your lien vs. the others. If yours was recorded first it is nearly certain you'll recover everything - if you were recorded last I'd say you'll very likely get nothing. Add up the loans recorded before yours and you'll get a pretty good idea of where you stand. Sean
I was the first one to put a lien on the property, because I did the grading. The owner was getting draws from the bank upon completion of phases of construction. I was paid about 1/2 of what he owed me before he defauted on the loan. It's been 2 1/2 years of waiting and paying lawyers to fight for what I should have never let get this far out of hand. I guess what troubles me is the property has a $1.5 million loan balance and I would bet it will sell for around the $1 million mark. Do you think I will get a % of my money or would I get paid out first from the proceeds? Robert Hannan
Again... depends on the priority order of the loans and liens. You say you have the first lien - but are you ahead of the loans too? In determining priority order loan vs. lien makes no difference. So if that $1.5M loan was recorded before your lien, you will likely get nothing. Sean
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I would like to buy a house directly from a foreclosure pro who buys from the CHS. What's the best way to get hooked up with one...attend a sale and hand out my name, number, etc... What would be considered a fair price to pay the foreclosure pro 10k over their purchase price? I want to do the work and know where i want to buy but i have a full-time job and just don't have the time to do the CHS and keep up on this. It's obviously a full-time deal for these folks so their the pros not me.

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I would like to buy a house directly from a foreclosure pro who buys from the CHS. What's the best way to get hooked up with one...attend a sale and hand out my name, number, etc... What would be considered a fair price to pay the foreclosure pro 10k over their purchase price? I want to do the work and know where i want to buy but i have a full-time job and just don't have the time to do the CHS and keep up on this. It's obviously a full-time deal for these folks so their the pros not me.

Answered by Jake


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Here a new question. I had a second position on property and the frist forclosed at a trustee's sale. There was a third who was omitted, I bought the first and didn't bid in my second ( I bought it directly from the owner the day of the sale). I thought I was getting clear title as I called the trustee to make sure all were notified and got a title report that showed the third. I have a subordination agreement from the third connected to my now wiped out second. does it survive the forclosure, or am I out of luck and the omitted third can just redeem the 1st and take possession.......I also sold the property directly after the sale to a third party for what we paid for the first and third.....doing a good semaritan thing to protect her also. what a mess

Answered by val bell


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You indicate that you purchased the property directly from the owner the day of the sale. Does this mean that the property did not go to trustee sale or that you were the winning bidder at trustee sale? If the trustee sale happened and it was the first that foreclosed then all junior liens are wiped out. If you "purchased" the property directly from the owner and stopped the sale then all liens would still be attached to the property. You do not tell us what state the property which would have an impact on the answer to the redemption question although typically a junior lien would not have a redemption period following the trustee sale. (this may not be true for all states). If you resold the property we assume that the new owner purchased a title insurance policy which would mean that they have clear and insurable title. If they did not purchase a title policy we highly suggest contacting your local title company and purchasing an owners policy as quickly as possible. Michelle
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Our Heloc matured this year, the last few years our home lost about 40% of it's value in the housing bust. Due to the loss of equity we could not refi the loan. To make matters worse I was one of the 25% of the unemployed here in Michigan. After examining all our options, we decided to file a chapter 7. We were going to file Chapter 13, however once our attorney discovered that our HELOC moved up to first position as a lein and our much larger mortgage was in second, he advised us to do a Chapter 7 so we wouldn't eventually be sued by the larger lein holder now in second position for a deficiency judgement, even after we left the home. Have you run into this situation in your past? The way it happened was the first time mortgage was taken out in the nineties, a HELOC was acquired for home improvements in 2000, then when interest rates dropped in 2002 a new mortgage was taken out which paid off the HELOC. However, the HELOC was not closed at that time and apparently no subordination agreement was filed with the court. We had no idea that this would result in such a complex situation later on. Anyway, after a couple of years we used the HELOC again. Apparently the title company never filed the subragation paper with the county which would have closed the account. So, we filed a Chapter 7 last Friday 9-24 to halt the sheriff sale scheduled for next week. Since the HELOC has first dibs on the money, they will get the first 120,000, do you think the other bank will bid up the property? It is currently worth about 300,000 but a house down the street cannot sell for 219,000. My brother has offered to help us to buy back the property during the redemption period for what it is auctioned for. We do have some money in IRA which would help with about half of what I am guessing it will sell for at auction. My brother offered to loan the rest until we can arrange financing through a private invester. Any advice you can offer would be appreciated.

Answered by Mike


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Interesting case, we are seeing a few of these. You didn't say which loan was going to sheriff sale. If it is the HELOC that is foreclosing, you should know that the 2002 loan will likely be protected by title insurance they received at the time that almost certainly guaranteed they were in first position. You mention that the title company failed to file a subordination agreement - I doubt that. Instead I believe they likely sent your HELOC instructions that it was being paid in full and that the line should be closed, and the mortgage reconveyed. Regardless, expect the title company to go after whoever they can for the lost money - either the HELOC for allowing you to borrower again, or you for doing so. Hopefully you have good counsel on the bankruptcy. I think it may have been a mistake to file now. Perhaps better to let the foreclosure happen, and file if and when someone comes after you for a deficiency judgement. Unsecured debt can be wiped out in bankruptcy... secured debt can not, That said, know that I'm not an attorney, and that you should find a good one. As for saving the property, if you really want to do that, have your brother help you pay back all the money you borrowed. If your not willing to do that, then be prepared to have to move on. I believe you'll find the redemption period only gives you an opportunity to stay by paying in full, not whatever it sold for at auction. Sean
Sean - In hindsight, I believe this is exactly what happened with one of the Trustee Sale auctions that I ended up purchasing a few days ago. I purchased a Line of Credit which was in 1st positon which was for $50K, but the primary $560K loan was in second and had title insurance. I paid $375K for the Line of Credit at the auction. What can I expect now from the 2nd lienholder which had the $560K? Vinay Gupta
Hopefully nothing, worst case a lawsuit. If I were in your shoes I'd do 2 things: 1) Open escrow and get them started on a preliminary title report (they usually want the buyer identified first, but we usually had a our title co open escrows before that) thus if there are any issues you'll know soon, 2) Resell the property as fast as you can. Maybe even wholesale it out to someone at a (still profitable) discount. Just make sure it is an insured transaction. The goal with the 2nd point is to avoid being stuck with holding costs if the wiped $560k loan does try to sue someone. If they come back later the new buyer will have an insured transaction and the lenders title co (who should ultimately pay) and your buyers title co will work it out with no pain for you. Sean
Hi Sean - Is there a particular title company that you have used in the past that cooperates with this situation? Vinay Gupta
Nope, any should be fine. But note there really is no "situation" at this time, you are just concerned there might be in the future. This is important because you shouldn't expect to get clean title if you run into the title co telling them you need a title policy because you are worried you might get sued and you want title insurance to protect you. No title company in their right mind would touch that. ;-) Sean
Having worked in the title industry for 13 years I can tell you that a "good" title officer and escrow officer are worth their weight in gold. Talk to your escrow officer and see if it is possible to talk to a title officer about this file. You may also want to reach out to the title company that insured the loan that you purchased when it was originated. They will have a file already on this property so that could be to your benefit. Michelle
Sean is right. I should have been a little more clear. You would never run in and say that you are afraid of a lawsuit but you could certainly tell them the story to make sure they could insure it. I have had situations where another title company refused to insure a transaction but my title company would. This is why it is so important to have your "go to" escrow and title officer. Michelle
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I purchased a home at a trustees sale. I was informed by the bank and attorney that the liens would be cleared and I would have a clear deed. Will I be informed when the deed is recorded if there are liens on the property. Also, I did not purchase title insurance. Can I still purchase it after closing. I have already closed on the property.

Answered by Sandra adams


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Trustee sales are made without warranty or guarantee express (written) or implied. Are you sure you purchased at trustee sale? There is no "closing" on trustee sales. Please ask a new question if you have further questions as this doesn't have anything to do with this thread. Sean
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Are property taxes considered IRS taxes and subject to the 120 day right of redemption even if they have not been recorded?

Answered by Neil


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No, they are always senior and all past due property taxes must be paid by the buyer at auction. Sean
Should I assume that the published bid has included the delinquent property taxes even if they have not been recorded as a lien at the county? Neil
No, they are never included and like ALL senior liens will remain due if you win at auction. You can find the amount by inquiring with the county tax collectors office. Most tax collectors have an online interface to lookup past due taxes using the APN (which we show in the Location panel). Sean
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Dear Sean. Would you please list the leins that will be wiped out in trustee sale and the ones that will not .in an #'d item form. as well as the leins that will and will not be wiped out in case of forclosure .what i learned from you all is wiped out in forclosure . Thank you, neptune

Answered by neptune


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It isn't an issue of type, but position. With rare exception junior liens are wiped out, senior liens (recorded before) are not. The main exception is that the IRS has a 120 day right of redemption. Junior mechanics liens may have the ability to collect in limited circumstances as well. Sean
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While Sean and others have made mention of the occasional problems that arise from junior HOA liens ... I'd like to share what I learned from a veteran steps investor. There are certain HOA collection agencies that take over collection from delinquent homeowners and simply refuse to remove the lien after a steps sale is made to a third-party investor. Even though the law in CA technically wipes out a junior (and 99% of liens junior to foreclosing loan) HOA lien, the mere fact that the collection agency refuses all requests to remove the lien can create real problems when attempting to re-sell the property. The lien clouds title making it difficult, if not impossible, for the steps buyer to re-sell the property. Hence, many steps buyers simply choose to payoff the HOA lien even though they may not be legally obligated to pay it off. Has anyone out there had any success in getting an HOA collection agency (e.g. Pro Solutions) to remove an HOA lien after the subject property has gone to steps sale? Seems almost criminal for such HOA collection agencies to ignore the law by keeping such (theoretically wiped out) liens in place. Effective extortion it is.

Answered by Danny B


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Danny - note that the lien doesn't technically have to be "removed". For example 2nd mortgages that are wiped out by a 1st mortgage are never reconveyed. The only issue here is whether or not you can get the title company to insure around it. This is usually easier if the lien was recorded prior to the sale date. Harder if after because the title company can't tell whether or not is a lien for services before the sale (which you aren't responsible for), or after (which you are). Secondarily you may have to deal with getting them to stop their debt collection. On that front, I'd suggest the Fair Debt Collection Practices Act http://www.ftc.gov/os/statutes/fdcpajump.shtm. As you mentioned, I have had ones that have been just easier to pay, I just wanted to make sure everyone was clear that the right place to start is with trying to get the title co to insure around it. Sean
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Thanks! ... very helpful and important clarification.

Answered by Danny B


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I purchased a house in WV at a foreclosure sale at the courthouse for $96,000. Prior to the sale I called the bank to get a copy of the appraisal. I was told that the appraisal was $125,000 but I couldn't get a copy of it. I just received the deed and disclosure form attached to the deed indicated that the $125,000 appraisal was in 2005 when the loan was originated. Should they have given me the date of the appraisal and is there anything I can do. The original loan was for $95,000 in 2005 when there was a booming market. I realize now that I paid too much for the house assuming that the appraisal was a recent appraisal.

Answered by sva


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We don't know WV law, but almost all foreclosure sales on the courthouse steps are made without any warranty. We doubt there is anything you can do, but you may want to check with an attorney that is familiar with WV foreclosure laws. Sean
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When buying at the trustee sale the best advice for this type of question is always have your title insurance rep which is actually gonna be working with you anyways to record/transfer title for you, To check the title record on subject property for any future problems w/liens on that property before you make that bid at the court house.

Answered by Peter berg


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Regarding the topic of pecking order and subordination agreements... Do the subordination agreements have to be separately recorded or do can they be contained within the recorded trust deeds? Can you just scan the recorded files database and conclude pecking order without reading actual documents?

Answered by Vinay Gupta


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Hi Vinay, The subordination agreement is a separately recorded document that references the Deed of Trust that is subordinating. Michelle
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Hello everyone, great thread. I am looking at a home with a $150k IRS tax lien. Home should be valued around $540k. What is the likelyhood of the IRS coming for their money? I would like to renovate teh home asap, and waiting 120 days would be difficult. Someone mentioned that teh IRS may allow you to pay them less than what is owed. Any idea what that may look like in my case?Also, if I were to contact the IRS asking if the property will be redeemed, how long would it be until they get back to me? Does anyone have experience with this? Thank you for your help.

Answered by Seth


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I have heard from others that alerting the IRS to the situation is not a good idea, and that it's best to just try to fly under the radar. In your case, because so much is owed and the house will cover that amount, I would not be surprised if they came calling, but I still don't think I'd call them first. I have heard stories from people who have contacted the IRS, and were told someone would get back to them, and they ended up having to wait the 120 days anyway. So as to your question about how long it would be until they get back to you, the answer is that they may not get back to you at all. As for whether the IRS will negotiate for a lower payoff, yes they might. The question is whether it's worth it to you to risk raising their awareness as to this particular property. MikeG
Mike, Thank you for your response. I do not think I would contact them, but I had to ask the forum. So if they call I will, without a doubt, have the option of paying off the loan? If this is the case I could still renovate and hope they don't call. If so, then pay it off. Seth
Well, understand that mine is just one opinion and I am basing that only on speaking with others. As to your question of whether you have the option to pay off the lien, I would think so, but considering how much money you're talking about, I would recommend that you run this scenario by a local real estate attorney who is familiar with this process. You have too much at stake here to be only taking advice from people on the Internet. Speak with an attorney. MikeG
I will speak with an attorney. Thanks for your help. Another issue, I have read online that if the IRS does redeem the property that they repay the purchase price AND interest. Is this true? True in California? Thanks for the help. Seth
That is my understanding as well, but again, I don't know for sure. And in any case, what is their interest rate? Probably about 0.01%, so I'm thinking it would be essentially nothing. MikeG
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The IRS used to have a dept. that actually tracked all fcl. sales where they got the required notices and would solicit guaranteed bidders so they could redeem. Those of us who have been around 10 years or longer have all had properties redeemed. I forget the interest rate that was paid. You could/can also recover money spent to secure the property. Obviously you can't recover repairs. Now with almost no one around w. any equity - they no longer track a fcl. except in VERY rare instances where a particular agent is on a case.

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If I buy the 1st deed of trust at auction, and later found out that there were some claims to title that dated prior to the first DT. Since the first DT would have had a title insurance written for it when it was originated, would, I, as a buyer of such lien, also inherit such title insurance from the former lender?

Answered by Eddie


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No, you are not a party to the insurance policy and do not "inherit" it. That said, I'd recommend opening escrow with the same title company that insured the "1st" originally when you go to resell or get a loan on the property. A few possibilities: 1) they may rely on their prior underwriting and not look back further thus issuing you new title insurance, 2) they may have something in their prior title work that proves the claims are invalid and therefore will be willing to insure, or 3) they are going to have to really think about what to tell you regarding their prior mistake. Sean
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If I purchase a tax lien certificate in St. Louis, County Missouri, and the grace period passes and the property is now transfered to me. Are the existing mortgages wiped out? If for some reason they did not purchase the lien themselves.

Answered by cory


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Please help! I purchased a property on 10/21/2010 with cash. the property own by a company. this is a standard sale and the seller has ALTA insurance. Since it's cash offer, we didn't buy lender's title insurance. I just found out there is a Notice of Default recorded against 2 months ago. It shows my seller (a company) bought this property in Trustee Sale and sold it to me.... what should I do...???? thanks Nu Nu

Answered by Nu Nu


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Seller's don't get insurance buyers do. Two basic types of policies - owner policies and lender policies. If you are a cash buyer there would not be a lender policy, but you should have received an owners policy. If you did, then call the title company that issued the policy and open a claim. If you did not get such a policy then you should probably hire an attorney to see if you were defrauded. Sean
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As Sean said, IF for some (to be blunt "dumb") reason you didn't get title insurance, you need to consult an atty. right away. Were there other parties involved - like real estate agents representing you and/or the seller.

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I just bought a property in TX from a Constable Sale auction county court for HOA's lien. The previous owner still have an outstanding mortgage. What would happen now? does this Constable's sale wipe out all the mortages ?

Answered by mike


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Each state has different foreclosure laws. I don't know about Texas, but I would highly doubt that the sale of the HOA lien would wipe out the the mortgage. Most likely, you simply now own a property with a mortgage already on it. And the lender may have already filed foreclosure as well. But hopefully someone here with knowledge specific to Texas will chime in. In any case, you should probably speak to a good lawyer familiar with foreclosure/real estate law to see what options you have. Good luck! MikeG
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practiced by some companies. They realize that legal fees to bring the matter to court will cost Alliance CAS – Association Collection Company or Extortionist. I recently bought a condo through the Palm Beach County foreclosure auction. I had hired a title search company to do the title search, visited the property, and followed what I considered to be reasonable due diligence. After I received the certificate of purchase from the Palm Beach County Court, I contacted Alliance CAS via an estoppel request for the payout amount. To my surprise, Scott Jaffee insisted that his company receive over $5000 for legal and collection fees before the lean is released. I contacted my lawyer and he advised me that this sort of practice is borderline extortion and is more that $5000 and hence they continue to get away with such unfair collection practices.

Answered by preps


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Alliance CAS – Association Collection Company or Extortionist. I recently bought a condo through the Palm Beach County foreclosure auction. I had hired a title search company to do the title search, visited the property, and followed what I considered to be reasonable due diligence. After I received the certificate of purchase from the Palm Beach County Court, I contacted Alliance CAS via an estoppel request for the payout amount. To my surprise, Scott Jaffee insisted that his company receive over $5000 for legal and collection fees before the lean is released. I contacted my lawyer and he advised me that this sort of practice is borderline extortion and is more that $5000 and hence they continue to get away with such unfair collection practices. preps
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Preps - Unfortunately your post(s) are totally incomprehensible. If I had to guess, you bought a property at a Florida fcl. sale. Fl. is a mortgage state and fcl. are handled thru the Ct. system. If there was an HOA lien or some other Judgment lien - they would be wiped out via fcl. What makes you think they still have a lien on the property? Again, this is all a guess since your post isn't comprehensible. BTW - The word LIEN is spelled L I E N. Not lean.

Answered by miket


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HOA Liens recorded after the Ist mortgage stands as a Junior Lien & if you buy a a junior lien, other Senior liens, if any will still exist. You don't have to pay them but they can foreclose the property & when you resell the property they will have to be paid to close the property

Answered by Tariq


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Does any body know what happens to the State Income tax Judgments? Are they treated the same way like IRS Judgments Liens & does 120 days Rule apply here too?

Answered by Tariq


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Hi Tariq, State tax liens do not have the same redemption period as an IRS lien. Michelle
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thanks Michelle but if they were recorded after the deed of trust, they just get wipped out as the result of foreclosure. Thanks, Tariq

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what is the difference between liens & judgment liens

Answered by Tariq


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A judgment is a specific type of lien. There are many types of liens -- mechanics, state tax, federal tax (IRS), HOA, etc. Sean
To elaborate - A "judgment" lien refers to a lien that results from a "Judgment" issued by a Court. It normally is for money,. Once the Court awards Judgment, you have the Court clerk issue an "Abstract of Judgment" and record it in any county where you think the debtor owns property. miket
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so these judgments will be wiped of if junior to deed of trust in foreclosure?

Answered by tariq


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Yes. miket
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I bought a home and wasnt disclosed a pending lawsuit. Title didnt catch it and a lis pendens was never filed. Now I am attached to the lawsuit. Will the court dismiss me since the lis pendens was not filed or recorded?

Answered by Julie


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That's unlikely. You do need to open a claim with your title insurance company. Just let them handle it. These things happen and that's why you paid for the insurance. Sean
The title company denied my claim saying it was an easement issue. And that a lis pendens was not recorded. So they said they are only required to search recorded documents. Julie
You probably have a CLTA policy which limits coverage of non-recorded items to certain things, like forgery. See: http://www.insurance.ca.gov/0100-consumers/0010-buying-insurance/0080-compare-premiums/title-terms.cfm. If its an easement issue the prior owner knew about it now sounds like you need an attorney, and that you may need to file a suit against the seller. Sean
I have a ALTA policy julie
Remember that title companies are insurance companies. You should escalate the matter to a manager. Was the easement disclosed on the preliminary title report? This is also why you want to purchase the expanded policy. Were you informed that there was an expanded policy?? It may be time to hire an attorney to fight with the title company. Like any insurance company sometimes you have to fight a little bit. Michelle
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Does mello roos survive Trustee's Sale?

Answered by Mark from Green Idea


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Hi Mark, Yes, Mello Roos is senior to most Deeds of Trust. Michelle
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Hello Sean, My husband and I have an opportunity to purchase a home at trustee's sale on November 7, 2011. We actually did a market analysis to see if it was a good investment. The paper stated the opening bid is $119,000 and the house is worth between $170,000 and $180,000. The 1st has foreclosed on the house for the $119,000. We contacted the owners to see if we offered them cash with an extra $10,000 before going to auction if they were interested. Found out through them that they also owe a 2nd of $100,000. We have a hard money lender willing to lend us the money with 7% interest for five years until we told him we would have to buy it at auction. He said he would never lend for an auction purchase because too many things can go wrong. He said you can't buy title insurance on the house to guarantee the junior liens wouldn't have rights. I was under the impression, the 2nd will be wiped out, correct? Tri-Counties bank holds the 2nd and has not foreclosed on the property. Am I not able to do a preescrow title search and then purchase title insurance? He would rather I talk the sellers into a short sale which means we are going to pay a much higher amount most likely. Can the 2nd come back later and sue us if we were to purchase the property at auction and would my title insurance protect us from that? By the way, we are in Northern Calfornia! Thank you, Sandy

Answered by Sandra


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Best bet for finding a hard money lender that will loan on a trustee sale is to ask around at the steps. Their rates will likely be substantially higher than 7%, but perhaps you could use them as a bridge loan. Very little chance you'll find a title company to give you a lenders policy that would cover the lender at the time of the trustee sale, so the lender has to be willing to accept the title risk until a policy can be put in place after the fact. If you do buy at trustee sale the 2nd can not come after you or the property as their security interest in the property will be wiped out by the foreclosure (they may still be able to go after the borrower). If you can't find the cash to bid on the steps, then a short sale is a reasonable suggestion. Typically the 1st and 2nd will cooperate such that the 2nd at least gets something. Finally, the opening bid is likely not what you will pay. If its worth 180k, you should expect to pay $135-150k at trustee sale. Sean
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Back to Mello Roos (in California), Mello Roos bond indebtedness is included on a property tax bill. Since they are on the property tax bill, they are senior. So, you just need to worry if there are back taxes due on the property becausethese are included in that debt. Unless there is some strange County in California that does not put it onto the property tax bill, in which case you will have to find out if a separate bill is issued and what the status is of the payments.

Answered by GJ


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No strange counties. To the best of my knowledge Mello Roos should always be assumed to be senior, but as you noted they are included in property taxes, so nothing special is really required to track them. When I see property taxes that are substantially more than 1% of value, I usually assume there are Mello Roos, and I adjust price accordingly (or at least make sure all my comps have Mello Roos too). Sean
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Hi Sean, Very informative site! I co-own a house a jtwros in California. My co-owner got over his head on credit cards and got 3 liens placed on the house. The 1st credit card company is trying to foreclose the house. How do they foreclose a house where there is more than 1 owner? If an auction happens how do they determine the starting bid? In an auction how does my half get handled? Thanks in advance

Answered by Tony Taylor


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Check with an attorney, but I believe your half is completely at risk. If the credit card company gets court approval to foreclose they will likely start the bidding at the amount they are owed. If the winning bid is more, any excess will first go to other liens, and then to you and your co-owner jointly. I don't believe the fact that the debts are the co-owners rather than yours will matter at all. You will just have to try to recover any losses from them after the fact. I'd recommend you quickly find an attorney and see what option you might have. Perhaps you could buy the partner out by paying off his debts and thus removing the liens from the property. Perhaps there is a way to protect your interest that I'm not aware of. But I certainly wouldn't wait and see what happens. Sean
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Thanks Sean. I will check with an attorney.

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Does anybody know what happens to a county zoning violations lien judgment? Do they get wiped off at foreclosure if they are junior & if they are senior?

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Be careful with County Zoning Violations on a property. You need to read through them carefully because they usually involve building code or zoning code violations from construction on the property. My understanding is this (and I could be wrong, don't take this to the bank): The actual recorded lien judgment or fine amount (the dollars) do not belong to the property and are wiped off the secured property during foreclosure of a senior lien (the first trust deed). However, the County can continue to try to recover the fine from the personal owner. The larger problem is that the County has discovered big issues with the property and have registered the issues against the actual property. You are not required to pay the fine, but you are now officially notified that you have to correct the situation. Here is an example of something I was looking at: Recorded County Code Violation (recorded after the 1st TD) for an amount of $250,000 against the owner. I pulled the lien and called the County inspector on the lien. Turns out the owners had re-graded a protected canyon slope behind the house without permits. The County was very nice about explaining everything. As a new owner, I would be required to hire an environmental engineer, submit plans and restore the entire canyon slope back to original condition (who knows what that would have been? ) and THEN plant new natural landscaping to prohibit erosion. Needless to say, I stayed away from that one! It is still lingering as a bank-owned property that has never come back out for sale on the market.

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Thank you so much for the detail explanation. If county filed a monetary judgment of $17000 in regarding to a zoning violation because the previous owner was using the property as 'junk yard" If the got a monetary judgment of $17K does that mean that county people came out spend time to clean up & then file a judgment of default? How would that effect me if i purchase the property & this judgment was junior to the trust?

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If the judgment was recorded AFTER the date of the foreclosing Trust Deed, $17,000 will not be your responsibility - it is against the prior owner. If you clean out the entire property and it is no longer a 'junk yard', then you should be OK. You may want to call the County and ask them to come back and re-inspect the property just to make sure the issue is no longer recorded in their code violation books against the property. Just be sure you do not have any other possible code violations on the property that they can catch while re-inspecting.

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Would a credit line deed of trust would loose its seniority if gets modified later on ? For example a credit line deed of trust was recorded in 1/1/2005 . Then there is a junior lien gets recorded in 2/1/2005. Then on 1/1/2006 credit line deed of trust(the one originally recorded 1/1/2005) gets modified & gets recorded on 1/1/2006. Now this would still be senior?

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Hi Tariq, A recorded modification would not change the lien position of the original deed of trust. The only way that the lien position would change would be through a subordination or a reconveyance of the original deed of trust. Michelle
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Thanks . What do yo mean by "a reconveyance of the original deed of trust". Would the correction in the deed consider being a reconveyance of the original deed of trust?

Answered by tariq


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The modification would NOT be considered a reconveyance. You will usually see the modification reference the original deed of trust. I do suggest reviewing a copy of the modification of the deed of trust so that you are crystal clear. It will be really interesting to see how this plays out with the new HARP program. Michelle
Does anybody know what does postponement of mortgage mean? is it similar to Subordination agreement ? If it is what is the difference between them? Tariq Tariq
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I'm interested in a property that will be auctioned off. On the preliminary title report, it states Abstract of Support Judgment recorded Octorber 04,2011, however, it does not have a price. I've seen this on other prelims where it says the same thing but will state, amount due $XXX. What does this mean? Is there a lien for something?

Answered by Mike P


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Best bet is to pull the document and read it. Are you sure it matters? If you are buying at trustee sale, and it was recorded after the loan in foreclosures, then it will likely be wiped out anyway. Sean
Sorry for asking rookie questions but I have another question. The prelim shows 1 abstract of support judgement recorded october 04, 2011 and another on 03/22/2001. It is a a trustee sale through auction.com. How would I go about pulling these documents? Mike P
You have a few options: 1) go to the county recorders office, there you can view them on screen for free or have them printed for a fee, 2) you can ask a title company for a copy (good to build a relationship with a title company if you are going to be buying at auction regularly, or 3) if you are a ForeclosureRadar customer you can purchase them for $3/ea in the app (go to Transaction History for the particular property, then add the 2 docs, then click purchase). Sean
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hi I have heard the title insurance starts after the property under your name (120 days ) 2-where can I free research the any liens on teh property prior to the auction.please

Answered by mel


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hi please tell me step by step how to check if there are any kind of liens on the property. on or off foreclosure radar site,free or with fees... thanks

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hi please tell me step by step how to check if there are any kind of liens on the property. on or off foreclosure radar site,free or with fees... thanks

Answered by mel


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Hi Mel, You can purchase title insurance immediately after a trustee sale provided there are not any clouds on title that would prevent the issuance of that title policy. You mentioned 120 days and I believe what you are referring to is the 120 day redemption period by the IRS. If there is an IRS lien on the property then a title company would not insure the title until the redemption period had expired. We do provide a transaction history which includes Grant Deeds, Deeds of Trust and foreclosure notices. When available we also provide the link to the county Grantor/Grantee index so that you can search for reconveyances, subordinations and IRS liens. We also provide the link to the County Assessor where you can check for past due property taxes. You will find other valuable resources within the transaction history. You have the ability to purchase document images and customize the transaction history to show the results of your research. Additionally we provide a check list so that you can keep track of your research. We have a great recorded webinar on title research. To view the recorded versions of our webinars please click on "Webinars" under the Support and Training tab on our home page. You will then scroll to the bottom of the page to see the previously recorded webinars that we have on file. You can also register for our free webinars and view the recorded version by clicking on the following link: https://www.foreclosureradar.com/webinars. Michelle
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We purchased a home at courthouse steps November 1,2011. The Hoa just Sent us a bill for over $4k from previous owner including attorney fees and late penalty. We are in Texas - is that our responsibility

Answered by Sharon Auffet


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We purchased a home at courthouse steps November 1,2011. The Hoa just Sent us a bill for over $4k from previous owner including attorney fees and late penalty. We are in Texas - is that our responsibility

Answered by Sharon Auffet


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Hi Sharon, The laws vary from state to state. It would be in your best interest to hire an attorney that is familiar with the laws in Texas. Michelle
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Hi Sharon, I am in a similar situation: bought a property at a Trustee Sale off the courthouse in Texas. According to a lawyer I consulted, if the foreclosure was done by the Mortgage Lender, it extinguishes all other liens except Federal and Property Taxes. Another exception is if the Condominium Declaration specifically makes HOA liens senior. I checked with mine and it said it is junior to Lender liens, so the lawyer said the HOA lien can't be enforced. What I will try is to have them voluntarily remove the Lien, so it won't cause trouble in future title searches, etc. Hope it helps.

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David S, - All kinds of junior liens (like in your case a junior HOA lien) get "wiped out" via fcl. sale. You would be wasting time and money trying to clear title of junior liens that have already been cleared by the fcl.!!! Title companies are fully aware of what liens have been cleared fm. title. A side note:In Every state I am aware of (Wa., Nv. Ca. Or. Ga. Fl and now Tx.) - HOAs put in their CC&Rs language that make any HOA lien junior to a first lender, at the least. If this provision weren't in the CC&Rs, lenders would not want to make loans. After all, HOA liens could, in theory, be so large the lender would be in 2nd position with no equity protection!. In Ca., HOA liens only have priority from the date the actual lien is recorded - meaning they are behind all loans/liens that recorded prior to the actual recording of the HOA lien.

Answered by miket


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Hello, I recently bought a foreclosure in Pinellas County, Fl only to find out I bid on the HOAs lien instead of the first mortgage. I quickly filed a motion to dismiss the sale after I learned of my mistake but the judge denied the motion and the court issued the certificate of sale anyway. The only other lien's outstanding are the 1st Mortgage of Bank of America which is an FHA loan & the water bill. My first question to you is will they issue a certificate of title if there are no objections to the sale if a lien exists for the water bill? Also, I starting digging for information and come to find out that there was an assignment of the mortgage that has four ROBO signers on the document! My second question is what chance do I have if Bank of America forecloses on me, do you think I could use this ROBO signed doc. against them? Because remember this is an FHA loan which technically does not have the actual security instrument,no? Any help would be greatly appreciated! Single mom just trying to get my kid in a great school district that did a dumb thing! Moonbelly
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What is the most effective doable way of obtaining protected from third party law suits?

Answered by LakGraini


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I loaned a friend $50,000 with a promissory note secured by his home valued at $800,000. He has a first mortgage of $400,000 but is stuggling with payments due to the economy etc. i want to determine best way to protect myself and get my money back if the bank forcloses or he is unable to make future home payments. Should I record this promissory note secured against the property, in case the bank forcloses. Would I be protected. Would I have right to bid or buy the property if they don;t or are unable to pay me on the note. Just want to understand our options and legal position to best protect my note amount owed and his equity in the house. He is trying to sell the house but this may take some time and we don't want the bank to forclose and or sell the house for their $400,000 1st mortage amount owed and we lose the other equity in the home.

Answered by Brad Heath


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Hopefully you got a deed of trust along with the note. You should record the Deed of Trust - not the note. You should also record a request for notice, so that the first will be required to send you notice if they go to foreclose. As for protecting yourself if they do foreclose: 1) As a junior lien holder you may be able to advance payments to the first and add them to the balance. You'll need to check the agreement you have with your friend - standard form deeds of trust generally allow this. 2) If you aren't receiving payments as agreed you could foreclose (you'll need a deed of trust to do a non-judicial foreclosure, otherwise you'll have to take him to court for a judicial foreclosure). 3) If it does go to sale you can bid to at least make sure the purchase amount is higher than the amount you are owed - if you "win", then you'll take possession of the property and can try to sell it to recover your money. If you "lose", your entitled to any excess proceeds (the amount above what was owed to the senior lender), up to the amount you are owed. Note that since you lien is unrecorded you may find that you are now junior to other debts, so you'll want to make sure you really are next in line or you may have to bid even higher. This option is tough because you'll need cash to cover the amount of the first, plus the amount of your loan in order to bid... sounds like $450k minimum to protect your position. Finally you should hire a competent attorney to make sure your paperwork is in order, your lien is properly recorded, and that you really are in 2nd position as it will significantly increase your chances of not losing your funds, or putting yourself in a position of having to sue your friend to recover the money. Sean
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You should have a Trust Deed recorded (or whatever the equivalent is in your state) to actually have your loan secured against the home. If there is still equity in the house, even if the bank forecloses you will still very likely get your money at that point. Whatever is bid on the house beyond what is owed to the first lien holder (i.e. the bank) trickles down to the other lien holders in order of their recorded position. So, if his house is really valued at $800,000 and the bank forecloses, the house will likely sell for significantly more than $400,000. Let's say it sells for $700,000. In that case, the bank would get their $400,000, you would get your $50,000 (assuming you have recorded a Trust Deed and are in second position), and then the owner would get the remaining $250,000. If there are other recorded liens, they would get paid before the owner. And any lien holders who have a position before yours would get money before you get yours. Of course, if the house is actually worth $800,000, and the owner only owes $400,000 to the bank and $50,000 to you, he would be really stupid to let it go to foreclosure. He should be able to easily do a regular sale. He would avoid having his credit trashed, and he would still come out with a decent chunk of money. But to reiterate: yes, definitely make sure you have a Trust Deed (AKA Deed of Trust) recorded. If that's not recorded, you loan is not really secured.

Answered by MikeG


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thank you for the response. I am and was in the process of sending my agreement titled "Security Agreement Accompanying Secured Promissory Note" and "Secured Promissory Note" but was not sure if just the Security Agreement is recorded or the Secured Promissory Note as well. Now with your comment to make sure I have a "Deed of Trust" recorded, is this an additioan document that needs to be recorded by myself and who all would need to execute it, myself only or the borrower as well? The property is in Idaho, I am in California. For Idaho - where am I able to get a "Deed of Trust" document ? From a local Title Company Company or possibly online. I am trying to understand and be clear on what I am looking for. Hope this is clear and you can provide a little more direction. Regarding the sale if it sells for more than the 1st mortagage of $400,000, say $700,000 who specifically is responsible for insuring distribution of the excess $300,000 to pay off my recorded note (Deed of Trust) and balance to the existing owner? I agree with your comments and much appreciate your feedback. I agree with the importance of getting the property sold to protect his equity but the market is very soft and financing tight . Thanks again.

Answered by Brad Heath


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I'd strongly encourage you to hire an attorney in Idaho to review your current documents, and work to make sure you have the right things recorded. I'm not as familiar with Idaho as I am California, but I do believe it is a non-judicial, deed-of-trust based state, so the things stated above should apply. It's not clear to me that you have the correct documents at all to secure your loan. In a non-judicial foreclosure state, like CA and ID, a "trustee" will handle the foreclosure sale and would be responsible for distribution of the excess proceeds. Note that if there is any dispute over the distribution the trustee will refer it to the court system which could leave the funds tied up for quite some time. Finally - not being able to sell because the "market is very soft and financing is tight", usually means to me the property is significantly over-priced and the seller (or perhaps even that market in general) hasn't come to grips with the fact that prices need to drop substantially. A good way to check is to calculate the return on investment vs. rent. For the house to really be worth $800k, net annual rents after all expenses better exceed $40k, and preferably $60k+, otherwise it's a market that is likely going to see prices get much worse before sales pick up. If he continues to let the property sit overpriced on the market, don't be surprised to wake up one day to find out there isn't enough equity to cover your loan. Sean
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I have a copy of a "Deed of Trust" from and Idaho online Title Company but it does not reflect any required signatures at the end of the document, just names of the Grantor, Beneficiary and Trustee (the Title Company) (can I be the named Trustee?) at the beginning and at the end provides for the document to be notorized.

Answered by Brad Heath


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Brad - it is going to have to be signed by the borrower (grantor) to be valid. You really need to hire an attorney. Shouldn't cost more than a few hundred dollars. Hopefully the borrower is a good friend because you'll likely need their cooperation to straighten this out without significant legal fees. Everyone - take note! Don't ever do what Brad did and lend your friend some money without legal advice. Beyond likely having used the wrong forms and subjecting his interest to other claims by failing to record it, there's also potentially issues around compliance with TILA, HOEPA and RESPA whereby it seems to me that the federal government is making it illegal for anyone but big banks with lots of lawyers to get decent returns on their money. Sean
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thanks. I have contacted a title company in Idaho and it will be handled with the Deed of Trust being Recorded.

Answered by Brad Heath


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Hi Sean, Your comments to others are very helpful so I hope you could help. I am extremely worried. I bought an REO Condo from Bank ABC one year ago in California. I also bought title insurance. However, the title policy has a list of exclusions which listed 2 deeds of trusts dated in May XX 2008 and May XY 2008. Neither of these deeds were from the seller. In Sept 2009, there was a land conveyance with the name of Fannie Mae. On the title document it shows "title is said estate or interest at the date hereof is vested in fannie mae". The REO seller ABC bank, my lender, real estate agents, and the title insurance did not bring this up as an issue on the title. Escrow proceeded. I merely assumed that all previous deeds/loans would be cleared when the title was foreclosed in Sept 2009 o after I bought it in Oct 2010. A few months after I moved in, I received several BOFA subpeona noticed for the previous owner regarding some mortgages issues but I do not know the details since it was not in my name. Now the deed from BOFA listed in the title policy exclusion filed a notice of default on the property on Oct XX, 2011 in the Los Angeles County Recorder, and my home may be placed for sale in February 2012. Even though the loan is in default through the previous owner, Recontrust which represents BOFA says my home may be sold. I contacted the Title company but since the BOFA deed was listed in the title policy exclusion, I may not be covered. I paid 20% plus closing cost and cannot stand to lose this. Not can I afford high attorney fees on my own. Because BOFA has involved the previous owner in a lawsuit since last year Jan 2011, I am worried that BOFA has the rights to foreclose on my newly bought property and this is not just a erroneous notice. Would you suggest who I may have a case against? Is it Bank ABC who sold me the property? Thanks

Answered by Veronica C


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Veronica - I'm not clear. It sounds like you bought the property w. 20% down. Who financed the other 80? You got a title policy when you bot the property? List, precisely, what the exceptions are. Is the new 80% loan, which I presume you got, listed?

Answered by miket


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Hi Miket. I bought the condo with 20% down and lender XYZ issued a deed of trust in Oct 2010 during escrow. The title policy that I have through escrow listed exceptions. the exceptions are "Deed of trust recorded in May XX 2008 with Countywide (now BOFA) and May XY 2008 with Zinc Corp. There were so many documents during escrow that I did not detect that this was an issue. I thought the job of the title company was to issue a title free of defect at the time of the sale. I am surprised the lender lent me the money under these circumstances. Now BOFA with the Deed of Trust originally recorded in May 2008, have filed a notice of default recorded on Oct 2012. My home may be listed for sale as early as in Jan 20 2012 and auctioned in Feb 10 2012.. The lawyer hired by the title company hinted that the claim may not be covered by the title policy and they can't meet with me until next week. I am so stressed. Any thoughts would be appreciated.

Answered by Veronica C


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Veronica - why are you trying to protect lender "XYZ" and bank "ABC"? Frankly it's a little hard to believe you, let alone help you without that. We don't need your address, but you at least need to tell us who sold you the property and who lent you the 80%. If the first and second are still intact as you claim it sure doesn't sound like you bought an "REO" from a bank at all. Sean
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Ok. I bought a property from Seller Realtor REMAX, FlagStar Bank representing Fannie Mae and put 20% down. My lender is TJ Financial at the time of escrow at 80% but the loan got transferred so my current mortgage payments are with CitiMortgage. Sorry for being generic. Thanks.

Answered by Veronica C


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Still not 100% clear. ReMax was your Realtor in the transaction. The seller was FlagStar Bank/FNMA, Your lender was TJ Financial and making payments now to CitiMtg. This whole thing is hard to believe, but anything is possible these days. Does the "title policy" you have show you in title subject to all 3 loans? (2 old loans and your 1 loan).? I (and it appears, Sean) think we are missing some important info. Eg. Are you looking at a title policy showing you in title or a prelim title showing FNMA (the seller) in title? Depending on your answers would depend whether you have a claim to tender to your title company or whether you need to hire an atty. to sue all the parties. On the face, sounds like title company errors that may go back to the FNMA loan.

Answered by miket


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Sorry. It appears that in the preliminary title report, the 2 deeds show up. I just looked at my actual title policy, sent a few months after closing. It does not list any deeds there. Does it mean I may have a valid claim with the title company? Does that mean BOFA may not have the right to foreclose on me? They have standard exclusions in the policy which are hard to understand. Thanks a lot.

Answered by Veronica C


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That makes a lot more sense. BofA may have the right to foreclose, but yes, your title policy should insure you against any such threat. You need to open a claim with the title company, they should be able to resolve it from there. Sean
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How long the default judgement stays effective? There was a default judgement of 19 million & owners' name was among others in the judgement in 1991 Then in 2006 he bought a house , which is going to a trustee sale? He was the only one on the deed of trust & on the deed. This house was a rental property. If the judgement was effective it should have attached to the house back in 2006 when he bought the house & he shouldn't have to get the mortgage then?

Answered by tariq


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Laws vary by state. In Ca. a judgment is good for 10 years - and you can go back to Court to renew it once. That judgment expired in 2001. IF the loan in question was a purchase money Deed of Trust, it would have priority over any pre-existing liens against the buyer/borrower. miket
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So purchase money Deed of Trust have priority over any pre-existing liens against the buyer/borrower?

Answered by tariq


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Yes. It would have priority over any "general" liens - Liens that aren't specifically tied to that particular property. Eg. Judgment liens, state and fed. income tax liens, a lien for back alimony or child support, county hospital lien etc. miket
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I have a question in a particular (very interesting) situation. Let me pick your brains on this one: This is in Florida. Timeline: 1. In 2003, Person A purchases property and gets mortgage from Bank A. 2. In 2010, HOA forecloses on Person A, and becomes owner of property (subject to mortgage from Bank A). 3. In 2011, Bank A forecloses on Person A (also lists HOA as defendant), and Person B bids and purchases the property. 1. Will Person B have a clear title to the property? 2. Is Person B responsible for any HOA assessments Person A was supposed to make?

Answered by Chris Tillman


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1. Assuming the HOA is junior to the Bank A mortgage, and that there are no other liens or encumbrances, then yes it would be free and clear. 2. Unless Florida HOA's liens are super senior (this is true in very few states), then yes, person A should be free from any HOA claims prior to the date they purchased the property at foreclosure sale. While this is most likely right, please note that I'm not an expert in Florida foreclosure law, so I'd strongly suggest verifying this with a local attorney before putting any money at risk. Sean
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Interesting discussions. We bought a home with cash on a short sale a year ago through Bank of America and found out this week from a realtor who came to our door that B of A never canceled the foreclosure. The house is on the auction docket for Monday. B of A attorneys were alerted and say they have alerted the court to remove it. But what if that doesn't happen and the auction takes place?

Answered by Sheila Wissner


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If that happens then you will need to open a claim with your title insurance company, they should handle it from there. Sean
Bof A seems to have a habit of doing this. A woman in a building where I have a unit (in Ca.) sold her home on a short sale w. BofA and they filed an NOD 6 weeks after the sale closed! miket
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I am hoping that someone can help me on here since it seems to be full of great info. My husband and I are in contract for a home here in Northern CA. The seller bought the house in November at a foreclosure sale and is flipping it. We were told that escrow would not start till the IRS tax lien was removed. Last i heard the seller had paid part of it and it was getting removed. My question is how long does this process take? Is this something that will fall off after the 120 day period?

Answered by Lynsey


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I am currently in escrow on a foreclosure. When they did the preliminary title report it showed up with a $10,200 IRS tax lien. I have been told all we have to do is wait out the lien for 120 days and it will automatically expire. We are currently on day 80.... Its not much fun waiting, but I feel pretty confident from what I've been told that the IRS tends to just let these liens run out. After all the lien is intended for the previous owners. I was tempted just to pay it........because we are so anxious for the house. I was defintely advised against it, so we are just going to wait it out.... Laurie
Correct, the IRS has a 120 day redemption period after their lien is wiped out by foreclosure. The IRS rarely exercises this right, so the advice you got was good. Simply wait the 120 days for the IRS's redemption period to expire and you can close escrow the next day without issue, and without having to pay off the lien. Sean
If you were tempted to pay it and you are eager to get the house, maybe you should just call the IRS and offer them $1,000 to get rid of the lien now. On the other hand, you only have 40 days to go. :) MikeG
Thank you so much for the replies! This really helps me settle down quite a bit! Lynsey
At this point I guess I will try to be patient! Thanks for your input. This website has been a wealth of information on the subject. I was having a hard time getting straight detailed answers from my agent. I don't think she has encountered an IRS lien before. Laurie
Just thought I would drop a line here and let all know that there has been another successful escrow close after an IRS lien. A little patience has paid off..........because now we own a beautiful home! Thanks for all the advice :-) Laurie Puryear
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Hi everyone, thanks for so much valuable info. A property is being auctioned (going to TS) in Ca. by the 1st TD, the owner has recorded a divorce Lis Pendens on the property ,does the date of this Lis Pendens recording matter? If I buy this property in auction, do the previous owners have control over my selling it? can they not remove the Lis Pendens? what would it take to have them remove it? what are things that they can legally do? If I get an attorney , can the attorney legally force them to remove it? what are the risks of buying this property? I am planning to sell this later and I want to make sure I can get title insurance on it. I really appreciate all the help I can get on this. Thanks again.

Answered by Tom


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I have had some trouble with lis pendens in the past. From my experience title companies won't remove them even though in reality most claims coming out of the suit (especially those around a divorce) would be junior to the foreclosing deed of trust and therefore wiped out by the foreclosure. Yes you likely can have an attorney file to have the lis pendens released. That said, be very careful that the lis pendens is not regarding pending litigation against the lender whose loan you are purchasing or any senior lenders. Most auction buyers I know avoid these, but I personally might pursue one if there was enough margin to justify the added time and expense. if you do choose to pursue it, I would recommend having your title company and attorney review it before proceeding. Sean
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What happens when a property is sold without the knowledge of the mortage{lien) holder? The lein is on record with the county but the title search for the new owners did not find it. Was this a legal sale? They are now in tax forclosure and we want to pay off the tax lean and take back the building. Can we do that?

Answered by suzy


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Hi Suzy, I am not quite sure what you mean. The property was sold at trustee sale but you do not see the trustees deed? Are you the former owner or a 3rd party looking to purchase the property at tax lien sale? You may need to seek the assistance of a local title company to help you. Michelle
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Hello! Great info here..I have a question. I am in the process of buying a condo from an individual owner. I have an accepted offer and we have started escrow. The owner bought the condo with all cash at a foreclosure sale. The title search revealed an HOA lien from 2007. In your experience will I be able to purchase this property and obtain a clear title? Will there be issues with the HOA ? Thanks!

Answered by Kate


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In most real estate purchase agreements, the seller is responsible for clearing any outstanding liens prior to the transaction closing such that you get the property with clear title. Sean
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If it is discovered that as a result of a search of the recorder's office that there is no record of a 1st mortgage being recorded on a Michigan property, can the alleged lender foreclose on that property by simply recording the mortgage deed retroactively prior to initiating the foreclosure action?

Answered by Matt


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Likely yes. In most states recording of the mortgage isn't required, instead it provides lenders a measure of protection by securing their position in the property relative to other creditors who may claim an interest. Sean
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In 1987 a new purchase money Trust was made & in 1997 a property was sold & new owner assumed the loan dated 1987. In 2004 she got another trust & in 2009 She got remodification of trust that she assumed(originally dated 1987).In land record this re-modification was recorded as modification of trust. Would that assumed trust(then modified after another trust of 2004) would consider a senior?

Answered by tariq


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I assume you mean deed of trust (mortgage), not a "trust" which is completely different. Your question is tough to answer, and I'd suggest talking to a title company. I think it will comed down to which terms were modified in that original loan. For example if the amount was increased, I think that might make the earlier loan junior, however, something like a forbearance agreement might not. Sean
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Yes it was purchase money deed of trust that was originally issued for the purchase of a house in 1987 then it was assumed by the new owner when the house was sold in 1997.Then the new owner took another mortgage trust in 2004 & in 2009 she got re modification of deed of trust(originally issued to the previous owner in 1987) she assumed when she purchased the property. Now the trustee of that loan is foreclosing the property & mentioned in the add that original deed of trust dated 1987 & gave book & page numbers of recorded trust & then mention that it was re modified in page & book number. I would assume that loan is in seniority position?

Answered by tariq


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Hi Tariq - got it the first time, and again I'd say be very careful as it likely depends on the details of the modification. I'd talk to at least a title officer before deciding whether or not to buy, and perhaps an attorney to review the specific details. Even if you believe it is senior, I'd be prepared for a battle with the other lender - both with regards to time and money. Sean
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If there is a child support judgement on a property in Orange County, CA and the parent who owes the judgement amount is letting the house go into foreclosure, what happens to the child support judgement?

Answered by kathy sanner


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Like any judgement, if it was recorded after the deed of trust that is being foreclosed upon, its interest in the property will be wiped out by the foreclosure. Sean
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My community HOA in Arizona is considering forclosing on properties that owe HOA dues. We are a non-profit organization. Is that legal, and if there is a tax lien on the property can the the HOA purchase tax liens?

Answered by Bobby Johnson


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I don't know about Az - but the states I do know all allow HOA to foreclose for non-payment of dues. In some states any entity can purchase tax liens. Why would you want to gamble by doing that? IOW, what would you have to gain? In any case, I am 99% sure that there are bank loans on these properties. The bank loans, 99.9% of the time, could often be double or more the value of the property. The HOA lien would be subject to (behind) the bank loan. When the bank finally decides to foreclose, the HOA lien interest would be wiped out. There are very few instances where it pays for an HOA to foreclose. Besides the 1 in a hundred instances where there is actually some equity above the bank loan - it might be determined (a gamble) that this is a situation where the bank will continue to delay its own foreclosure for another couple years. (I know of instances where banks have gone 3 years or more without foreclosing. One case, 5 years. If the HOA forecloses, they could rent out the property and collect rent. Somewhat of a hassle because you would probable need to rent month to month in case the bank does start/complete a fcl.

Answered by miket


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Thank you for your info. The property I was talking about is just land with no mortgage on it. We are a not for profit HOA. I am worried we might lose that status if we forclose on property or buy a tax lien.

Answered by Bobby Johnson


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Eg. If you foreclose for $10K in back dues and take back the property for what is owed - no profit at that point. If someone overbids what is owed and acquires the property (like an investor or your wife), the HOA has no profit. They just collected back dues. The problem would be if the HOA began speculating in buying properties for the purpose of making a profit. The HOA would have the right, to protect their lien interest, to pay taxes and add it to the amount they are owed. I do not know anything about buying tax liens for speculation in those states that allow that. Give us an example What is owed in back taxes? If delinquent, what stage is the collection process. How much are your back dues/ How much would the lot sell for? miket
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Please let me know is there a posibility of Homestead for a Multi Family Residense. Please advise. Thanks

Answered by reddy


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One lot in perticular the HOA dues on it is 600 dollars. The property value according to Mohave County is 6000.00 The back taxes on it is approx 700.00. So you are telling me that we would not be able to sell the property for more then 1300 dollars? Just to be able to keep our tax exempt status?

Answered by Bobby Johnson


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Can a substitute trustee conduct a trustee sale without recorded Deed of Appointment Substitute Trustee (SOT)?

Answered by TARIQ


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I believe a "Substitution of Trustee" must be recorded, however, I'm not sure failure to do so would be sufficient to overturn a sale. Also note that a Substitution of Trustee is often recorded together with another document in what is known as a combo doc, so you might check other notices to see if what included, but perhaps not indexed by the county (a common county level error). Sean
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Does the foreclosing party need to list all lien holders on the court filing. I noticed that the included some liens but did not include the heloc by another lender. Does this affect their ability to foreclose? Do they need to refile?

Answered by mark sacccomanno


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In CA they don't have to provide any info on other liens at all - doing that research is your responsibility. Sean
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I purchased a First Trust Deed for a property consisting of (20) acres. Following the original date of the First Trust Deed was a Superior Court of CA Judgment as where 15 of the 20 acres was to be granted to a third party. However, the third party never worked with the borrower (property owner) to split the land (parcelize/ survey/ vest title as two seperate properties/ APN's). From my perspective, the First Trust Deed was before the Judgment and was for the full (20) acres; and the judment got wiped out/ extinquished int he foreclosure action. Therefore I now own 100% of the property as one APN and the entire 20 acres. I recorded a CLEAR TITLE in my name. However, the Title Insurance Co does not want to insure the property. I am at a loss as to what to do here because I now have a buyer. The Title insurance company wants me to get the 3rd party to sign a Quit Claim Deed or I would have to go through a Quiet Title Action process. Neither makes sense to me because I don not believe this third party has any interest in the property (they are not claiming interest at this time and are not in the picture) and a Quiet Title Complaint is where someone is filing because they are claiming interest in a property; when I already have 100% ownership via the clear title vested in my name. Please help any input would be tremendous!

Answered by Dusty


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The title company's is issue is the likelihood of a lawsuit, against which they'd have to defend the new buyer. From the facts you presented it seems clear they (you) would prevail, but there will still be costs to fight it, should that other party sue to try to keep their interest. And it seems likely they might try to pursue it if they paid the former owner... which is why the title company doesn't see it as a good risk (has nothing to do with who is right - just what it will cost to fight it). You could try another title company, but unfortunately your best bet is likely to get the quit claim as the title co suggested. With some luck the other party will understand a legal fight with you would likely be a waste of their money, and that they should pursue the former owner instead. This is an interesting issue, that I don't think has been brought up in this long thread... besides the issue of what is technically wiped out, you also always want to be considering the likelihood of a legal challenge even if you are technically right. While I don't think its an issue here, I wonder if the buyer of the 15 acres had recorded the deed, and had been using the property through open and notorious use, if they could gain some rights regardless of the deed of trust. I don't think so in this case as the deed was never recorded, and the buyer hasn't been paying the property taxes, but it is interesting to ponder... does anyone know? Sean
Thanks for the repsonse Sean. For clarification, the orignal owner (third party) granted entire property to the borrower. Borrower owned property free and clear then took out line of credit / First Trust Deed; then the Judgement awarded the third party (original owner), 15 acres of the 20; in which the five remaining - the borrow built a 1500 sf house on. Following the judgment in 2006, the third party never took title, paid fees, recorded anything or paid RE Taxes on the 20 acres. Dusty
Hmmm... if the judgement was due to the original sale that preceded the loan being faulty, you may have a problem. Did you pull the court case behind the judgement and read it? That they haven't recorded a deed or paid taxes may not be a problem for them as they have some statutory time within to do those things - so you'll need to look at that as well. This is getting beyond my pay grade, I think you need an attorney. Sean
Sean: You have been very generous to share your insight and time;) Do you have a recomendation on a good attorney in Southern CA. Dusty
I don't, but try our marketplace: http://www.foreclosureradar.com/marketplace/legal-and-eviction Sean
For what it is worth, subdivision through grant deed is a violation of the map act. Does the legal description in the foreclosing deed of trust clearly describe the land you believe to be the entire 20 acres? The street address and the APN are irrelevant. It is the legal description that is secured by the deed of trust. I think Sean's idea of looking at the judgement and file for the law suit will help to clarify what has occurred. Subdividing land in many places in CA is not an easy task. Is it zoned to allow for the subdivision? Richard
Richard, Thanks for your input and insight! While the judgment / settlement ordered all parties to sub-divide the land into 15 acres (undeveloped) and 5 acres (developed, 3 bed 2 bath house); the parties never did anything of any sort and the First Trust Deed (which has accurate legal description encompassing the entire 20 acres) was filed before the judgement. I belive the judgement was filed in 2006; so it has been around 6 years since the judgement. The third party who was supposed to gain the 15 acres is not around or causing a problem at all. I am confident that I could move my family in the home and never have an issue with this individual or title; however, I am selling the property and just need the title insured. To re-iterate I have CLEAR title in my name at this time. Like I said, I don't beleive that having the third party sign a Quit Claim Deed nor filing a Quiet Title Action is necessary; however Title Insurance Company will not insure it otherwise. Perhaps I should shop around for another title insurance Company? Any further insight you could provide would be tremendously appreciated... Dustin
There must have been a significant belief that the property could be subdivided. What was a the cause of action? Why was there litigation? It would seem like a real buy if you could create four 5 acre parcels. Richard
Richard, subdividing is not in the picture here; it makes no sense to sub-divide. Even if the third party was to come into the picture, it would not make financial sense for her to survey, sub-divide and pay for utility services, water well, easement, etc...I purchased the house and 20 acres for $23,789.01 and the house was built new in 2000. It makes no sense to sub-divide this land as no-one is building in this area; it is agricultural between two crop fields. I have put quite a bit of money to remodel the house and trying to go into contract for $100k. Dustin
I would have to agree, not much development going on in that area. If you have a buyer and can solve the title issue, an amazing value for a home built in 2000. It is an interesting problem. Please post as you make progress. Richard
Diff. title companies may come up w. a diff. answer as to whether they will insure. Costs nothing to try. miket
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Thanks Richard... I have a buyer and am going to carry 60% for 10 years @ 4%. Just need title insurance, Very Frustrating....

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Great Thread. I've come across a property going to auction. There is a first, then a second then other liens that have been filed. The first is foreclosing. But, there is a recorded loan modification of the first that was recently recorded (well after the 2nd and other liens). I have heard that in certain instances a loan modification can blow priority of the 1st if the modification is determined detrimental to the juniors. Anyone run across this issue? Thanks for feedback.

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I bid and won at county foreclosure auction in Florida. This is the HOA suing the owner, junior lien. Wells Fargo holds the first. I thought that I just purchased a home and it seems that all I have done is pay a debt for the owner. What exactly have I gotten myself into? Do I now own this home? Wells Fargo won't tell me anything about the 1st because of privacy act. I realize I have to pay off the 1st but how do you do that if the bank won't talk to you. Do I have any other recourse to get my money back? I still don't understand what it is I own if I don't own the house. I have a certificate of sale from the court house.

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Get a real estate lawyer to explain it to you. I don't know how it works in FLA. In California, you would own the house subject to any liens that were prior. What does your title search tell you about other liens? There might be more than just the 1st. Send a written request for payoff demand to each of the liens that are prior to the one you bought.

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As mentioned above, you own the property subject to the first. Odds are the first is more than the value of the property. The lawyer that handled the sale may have information for you and might give you a brief education. In Florida, if you know the party's name, go to the Court web site and look up the case number. You may (or may not) be able to view the papers that were filed on the Court web site. (You could last year, don't know if that is now blocked. I don't know what kind of Deed you get at an HOA sale in FL. Whatever you got, send a copy of the document to WF (certified mail) demanding they give you numbers. IF WF has filed fcl. (that you kind find on the Court web site indexed against the borrower's name) send a copy to the atty. handling their fcl. What County is the property in? Diff. county courts seem to provide (or not provide) diff. info online. I don't know if there is any right of redemption under this type of sale in Fl. BTW - Most lawyers will NOT be familiar w. this aspect of the law. If in Miami-Dade or Broward Counties I could refer you to someone. I wish you luck. Would be interested in you posting a follow up as to what happens. Since you have a "Cert. of Sale" - it sounds like you don't get a Deed for some period of time. Don't know what that would be, but the office that issued that cert. should tell you. In some counties - you can bid on foreclosures online. You have to register first. In Miami-Dade that is shown on the Ct. web site.

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good point about redemption. here in CA in a non-judicial foreclosure, the borrower does NOT have a right of redemption, EXCEPT, if it is an HOA foreclosure, then the borrower/former owner does have a right of redemption (either 90 or 120 days, can't remeber exactly right now).

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good point about redemption. here in CA in a non-judicial foreclosure, the borrower does NOT have a right of redemption, EXCEPT, if it is an HOA foreclosure, then the borrower/former owner does have a right of redemption (either 90 or 120 days, can't remeber exactly right now).

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Hi Barco, HOA foreclosures have a 90 day redemption period in CA. For more info you can go to: http://www.foreclosureradar.com/ca-foreclosure-law Michelle
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What if you won't close on the property you purchased at trustee sale,I know you would forfeit the deposit, Is it common practice that trustee will come after you for the difference of the sale price if the property sells less at the trustee sale of your purchase price?

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In most states you have to pay in full at the time of sale. No refunds. Arizona is one of the few states that only requires a deposit. My understanding is that you simply forfeit the deposit if you fail to complete the purchase. Sean
In Florida you put up %% (maybe 10%?) at time of sale and have til noon the next day to pay the balance. miket
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In Virginia , you pay the deposit & close in 15 days.The language they use in the memorandum of sale is that you may forfeit deposit & "the defaulting purchaser shall be liable for all costs of re-sale , plus any amount by which the ultimate sale price for the property is less than the defaulting buyer's bid" My question is it common these days they come after the defaulting buyer for the difference?

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miket, what happens if you won't close by noon the next day?

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I can't recall what would happen if you don't pay balance besides losing the deposit . Full info is on the Court web site. As mentioned above, never have gotten involved w. fcl, there. Just Ca., Or, Wa. Nv and Ga. miket
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I need to confirm if I buy the house at trustee sale in az, is the loan in the second position in fact wiped out or will I be responsible for it? Also the loan that is oldest is the first position loan or not always?

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Sean...I'm a Missouri foreclosure investor and have spent the last two hours reading many of your interesting and educational comments here. The only lien type I did not see addressed in terms of whether it remains against the title after a trustee's sale is a city "property mowing/clean-up" lien. Of course, they are usually junior since they occur after the owners abandon the property. Whether they are "wiped off" or not may well differ from state to state. If you or anyone knows the Missouri law I would like to here from you.

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Hi Larry - from my experience in CA it depends. If the city has the right to roll the bill into your property taxes if it goes unpaid, then I have had them make the case that it is super senior in the same way property taxes are, which makes some sent. Obviously laws do vary by state, so your mileage may vary. :-) Sean
Larry - Sean answered what happens in lots of jurisdictions. Best source for you would be to call a local title company and ask to speak to a title officer. miket
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Does anybody know what will be the status of the trustee sale if the foreclosed owner filed a law suit one day prior to a trustee sale & there is a LIS Pendens at the lands record. My question is , if i bought this property at the court house, will i be a part of the Lis pendens? Can I still get a title policy? Can I still flip the property?

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A Lis Pendens is a cloud on the title. You need to read through the related court case. Most of these are owners suing the banks for bogus doc issues. Since the foreclosure hasn't happened yet I don't think it can be for wrongful foreclosures. In my experience you CANNOT sell the property until the Lis Pendens is released which can sometimes take a year or so. I doubt that the property will go to sale, will probably get postponed. gj
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Property did go to sale & was not postponed. One of the investor bought it. The Lis Pendens says that owner(now previous owner) says in the filing that Trustee has no position to foreclose the property. Foreclosed owner( filed the LIS pendens by himself with out the help of an attorney.

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If they self filed it probably isn't much to worry about, but will be a headache for the auction buyer. Easiest was to clean it up is to negotiate a cash-4-keys with the prior owner and have them release it. If they are non-cooperative then it will require legal action (time and money), but will probably get cleared up. If for some reason it doesn't get cleared up, and the prior owner pursues and wins their case, the auction buyer should be able to recover their purchase amount from the bank. Sean
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In Texas. My husband and I signed 2 DOTs on the same day. First DOT was for $208K to purchase the house. Second DOT was for $17.8K and is entitled "purchase money DOT". Both with the same lender. The house was foreclosed and "sold" on the courthouse steps Jan. of 2009. Received an IRS F1099-A shows FMV of $250K and remaining mort. of $200K at the end of 2009 and reported on taxes as appropriate. Records show lender bought the house for $217+K. We did not receive the difference. In July of 2011 we start getting calls from a collection agency stating we still owe the $17.8K. I think NOT! Wasn't the purchase money DOT wiped out when the house foreclosed? BTW: the foreclosure has been accepted for an Independent Foreclosure Review as ordered by the OCC.

Answered by Alicyn


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Who is OCC? In many states, like Ca., there is no deficiency allowable under a purchase money DOT. Don't know about Tx. In states where a deficiency is allowed, the junior (2nd) will be wiped out as to the property - but you still can be sued, personally, because it is now an unsecured Note. Many times groups will buy these worthless notes for pennies on the dollar and shake down unknowledgeable people for some $. miket
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OCC = Office of the Comptroller of the Currency. Texas, like California, is a non-recourse state. I have also discovered that my purchase money DOT was junior to my other DOT. Since it was the "primary" DOT that was foreclosed, any surplus funds from the foreclosure sale should have been applied to the purchase money DOT. It appears that the amount the house sold for at foreclosure was such that both DOT's should have been satisfied. What, exactly, the $15,600.00 (the excess amount paid for the home at foreclosure) was used for is unknown. This is one of many "accounting" errors made by the loan service company that foreclosed in their name as if the lender had transferred the mortgage to them. This same loan service provider then "assigned" the purchase money DOT to a collection agency and said that the original lender was still valid. All in all, a nasty mess. This does not seem to be the correct forum to discuss the activities of this loan service provider with the exception of purchase money DOT. If, for your own edification, you would like to know the whole sorted, nasty details I would be more than happy to send you, via email, a copy of the 10 page letter I sent with my IFR request. Could be useful in helping others that are filing a request for an IFR. :)

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If there is an IRS lien on a property , How long a notice should be given to IRS prior to sale ? If the property is scheduled to go on trustee sale on Dec 27th & IRS lien was docketed on Dec 6th, would trustee still requires to give notice to IRS?

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Depends on when the Notice of Sale was recorded. If the Notice of Sale was recorded prior to December 6th, I'm not sure that the trustee managing the foreclosure process is required to keep looking for anything recorded after the NTS. If IRS Lien was recorded after the Notice to Sale, then the IRS probably was not notified, but not sure if Trustee is required to notify them for a subsequent recording. Not the expert on this, but that would be my opinion.

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